MPs urged to hold free vote on shared parenting

By Paul Russell, LegalMatters Staff • The Department of Justice should listen to citizens – instead of lawyers – and direct that the resolution of all child custody disputes starts from the position that responsibilities and time will be shared equally, says Toronto family lawyer Gene C. Colman.

“A recent Nanos poll shows that across Canada, three of four respondents indicated they either strongly support (48 per cent) or somewhat support the (29 per cent) the introduction of legislation to bring about a rebuttable presumption of shared parenting,” says Colman, principal of the Gene C. Colman Family Law Centre.

“The idea is gaining momentum, in all demographics and gender identities,” he adds. 

(Click here for a French version of this column)

Proof of that can be found in a 2017 Nanos poll showing that 35 per cent of Canadians strongly support the idea, along with 35 per cent signalling they somewhat support it.

“Since 12 per cent of respondents in the 2022 poll said they were unsure of the idea, that means that only 10 per cent of people actually oppose the idea of legislating equal shared parenting,” Colman tells LegalMattersCanada.ca. “That minuscule fraction includes most family law lawyers, social workers and psychologists, many of whom make a lot of money from the horror and hell that people involved in family law litigation currently must go through.”

He acknowledges that his advocacy on this issue will not sit well with his peers in the family law bar.

‘I am speaking against … my own economic interests’

“By endorsing a rebuttable presumption of equal shared parenting, I am speaking against their and indeed my own economic interests,” Colman says. “After all, we all make money from parents who can’t agree on what the parenting schedule will be.

He says those discussions would be simplified, or even avoided, if equal shared parenting was the starting point in custody disputes. (Colman adds that “custody” is no longer the term to be used in Canada. “We now talk of parental decision making and parenting time.”)

“We have to ask the simple question, ‘Why should one parent get less time than the other with their children if the relationship breaks up?’” he says.

Colman says that most of his firm’s clients are men who find themselves locked in a struggle to achieve equal parenting time in a court system that treats the mother as the preferred caregiver.

Colman is passionate in his beliefs. As he states: “Some may say or at least believe that men are inherently incapable of parenting children for any extended time. Some may say or at least believe that children need a parent of one gender more than the other parent. Nonsense. Study after study demonstrates that both parents can do an adequate job and that the kids benefit as a result. Sure, fathers don’t parent exactly the same, but there is good to be found in all parents.”

Men have to prove they are ‘super dad’

To achieve equal parenting time under the current system, Colman says a man must prove he is “super-dad” or demonstrate that the woman is not a good mother.

“If both parents are adequate, the presumption in these areas should be 50/50 time and decision-making,” he says. “The traditional view that the father is the breadwinner who should be happy with every second weekend makes no policy sense. It never did. As well, social science research shows it’s harmful to deprive children of a parent.”

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Colman says that advocates in the Equal Shared Parenting movement have discussed the idea of a rebuttable presumption of equal shared parenting with members of Parliament from all parties and is confident that the idea would garner wide support in the House of Commons.  Currently, movement advocates are seeking meetings with even more members of Parliament.

“I am going to go out on a little bit of a limb here, to predict that if a free vote were held today and MPs were allowed to vote their conscience, Canada would achieve a rebuttable presumption,” he says. “Any politician who endorsed the concept, pledging to vote in favour of an equal shared parenting bill would surely win the support of a wide swath of constituents.”  Colman concludes: “This is a no-lose position for members of Parliament – unless one counts ‘losing’ as incurring the wrath of lawyers’ advocacy groups.”

Majority of Canadians want a free vote on this issue

Colman argues that his view is backed up in the 2022 Nanos poll, which found that more than eight in 10 Canadians support (64 per cent) or somewhat support (19 per cent) having a free vote in Parliament on this issue.

The poll also found that about half of Canadians said that if a candidate or party supported the principle of equal shared parenting, that would not have an impact on their vote. On the other hand, one in three (32 per cent) say they would be more likely to vote for that party or candidate.

“Interestingly enough, similar U.S. polls show around 90 per cent of the populace say this issue would influence their vote,” Colman says. “American polls show that approximately 90% of citizens support equal shared parenting.”

“Despite the government’s reluctance to amend the law, we are starting to see a change in family law courts in some areas such as Vancouver and parts of Quebec, where the starting point in these parenting time cases seems to be 50/50,” he says. “Sadly, it is not that way in Ontario or in other parts of the country.

‘Now is the time for equal shared parenting’

“We need a free vote in Parliament on this issue. Now is the time for equal shared parenting,” says Colman.

“Equal time and equal authority should merely be our starting point.  From the presumptive starting point, we then will apply the usual best interests standards and adjust as per the needs of the individual case.”

He cautions this most certainly should not be viewed as merely a fathers’ rights issue.

“This is a children’s rights issue,” Colman explains. “They have the right to be with both parents as much as circumstances will allow when the relationship ends, as that will benefit the kids in every way.