Thanks to the standing committee for the opportunity for me to discuss with you today a child-focused, evidence-based approach to the best interests of children of separation and divorce. I should say I'm a professor at UBC in Vancouver. I would have preferred to address you in person, but I am on my way to Strasbourg for a conference on shared parenting, children's rights and social justice sponsored by the Council of Europe. I will be making a similar presentation over the next few days.
My jumping-off point is what I expect will be the jumping-off point for many presentations, and that is the UN Convention on the Rights of the Child, article 3, which states, “In all actions concerning children...the best interests of the child shall be a primary consideration.” The concept of the best interests of the child is referenced in seven other articles of the convention.
If I make only one point, it will be this. In Canada, the best interests of the child are really nothing but what Hillary Clinton many years ago referred to as an empty vessel into which adult prejudices are poured: the idiosyncratic prejudices, biases and ideologies of individual judges who have little or no training in the complexities of child development and family dynamics.
Today, the extremely damaging impacts of adversarial resolution of parenting after divorce disputes occur within the context of a divorce law that proclaims that the best interests of the child are its guiding principle. At the same time, in the arena of child custody, the best interests principle is used to justify any number of harmful policies and practices.
Parents justify their own interests by using the language of “best interests”. Judges justify their subjective biases by using the language of “best interests”. An ever-growing industry of professionals impose their views on the best interests of the child. Children are basically at the mercy of whoever has the most power and influence to impose their will regarding the best interests of the child.
We pay lip service to the best interests idea. We claim it's the guiding principle in our laws, policies and practices with respect to children, yet we seem to have no clear definition of what these best interests are, and rarely do we assess the impacts of our laws and policies on children. Rarely do we consider the best interests from the perspective of children themselves. It's almost always from the perspective of adults, and when adult rights clash with children's needs, the interest of adults almost always win out.
In so-called contested child custody cases, although it's generally understood that judges make residence awards such as primary residence to one or the other parent, in fact what they are doing is removing a fit and loving parent from the lives of children under the guise of the best interests of the child, which is in effect a type of parental alienation that is increasingly becoming recognized as a form of legal violence against children and families. It's exactly the same as the removal of first nation children into residential schools or the removal of young children at the border from the embrace of their migrant parents. That's what the best interests of the child standard in Canada in the arena of family law is all about.
My remarks focus on the majority of divorcing parents, where family violence and abuse is not a factor. I'm not talking about situations of family violence and child abuse on the one extreme, and I'm not talking about, on the other extreme, co-operative parents who are able to jointly agree on the parenting of their children after a divorce. Parental autonomy should be the cornerstone of family law in those cases. I'm talking about non-violent, non-abusive but high-conflict parents who are unable to agree on the post-divorce living arrangements of their kids.
The type of best interests approach being upheld by the Minister of Justice and the drafters of this bill is a discretionary standard that empowers those who really don't have the expertise in these delicate areas of child development and family dynamics to make life-and-death decisions.
There is a viable alternative to the discretionary approach, and that is an evidence-based and child-focused approach based on a strong foundation of research studies examining the best interests of children from the perspective of children and parents themselves, who identify shared parenting, in fact, as being in the children's best interests.
There are now over 60 studies that have compared child and family outcomes in single-parent and shared-parenting families, which have found that there are two main factors associated with child well-being and the best interests of children of divorce. The first factor is the maintenance of ongoing parent-child relationships with both parents, and shared parenting produces the best outcomes in this regard. The second factor is children being shielded from family violence and ongoing high conflict, and again shared parenting produces the best outcomes in that regard.
You will hear over the next days and weeks from countless experts in the field who will have very strong opinions concerning the best interests of children, but primarily they are going to be guided by their own ideologies about what is in the children's best interests, and these will be asserted with little or no research evidence to back up their positions. If you are influenced by their impressive rhetoric, then divorce law in Canada will remain exactly as it is now, which has been in many ways quite disastrous with regard to the harm it has produced for children and families.
I am suggesting that you think about adopting a new approach to the best interests of the child, one that is child-focused and evidence-based.
You'll also hear from opponents of shared parenting that a legal presumption of shared parenting is essentially a fathers' rights position, which is a complete mischaracterization and, I believe, an attempt to marginalize proponents of shared parenting, who are in fact mainly parents and children themselves. Equating shared parenting with fathers' rights is a last, desperate attempt to deflect your attention away from child-focused research on children and parent outcomes in primary residence versus shared-care arrangements.
I have a few other points. I realize my time is drawing to a close.
Parental alienation is becoming recognized as a much more serious and debilitating form of both child abuse and family violence. It affects far more families than most of us assume. It is far more commonplace than most of us assume, and it flourishes within the present system. There are now over 1,000 articles on the topic of parental alienation.
Shared parenting is a bulwark against that. It is a preventative measure with regard to parental alienation, which is now recognized by the World Health Organization in the international classification of diseases. The American Psychological Association has just struck a committee to examine the impact and prevalence of parental alienation. That's another key factor.
In non-divorced families, shared parenting is now the norm. Family life today is characterized by the shared responsibility of both parents in both family work and work outside the home. We promote the idea of shared parental responsibility in two-parent families, yet we seem to turn a blind eye to that idea post-divorce.
I would also say that a rebuttable presumption of shared parenting is compatible with a rebuttable presumption against shared parenting in cases of family violence, where children's safety and the victim's safety should always be the priority, and this is very much the position of the International Council on Shared Parenting.
A final point I would make is that there is really no moral, legal or scientific basis for the removal of a fit and loving parent from the daily life of a child. There is no justification for removing a parent from the life of a child in a situation where there is no neglect or abuse present. I would suggest that it is the responsibility of the committee to reform the Divorce Act in a way that will support parents in the fulfillment of their parenting responsibilities for their children's needs.
Shifting away from a rights-based focus to a responsibility-based focus is the measure by which Canadians will be able to ascertain the degree to which you are truly committed to the best interests of children.
Thank you.