In the Best Interests of the Child: A Call to Reform the Divorce Act in Canada
Bijan Rafii, Chair
The Canadian Campaign for Equal Shared Co-Parenting
bijanrafiiesp@gmail.com
Up to 40% of marriages in Canada end in divorce (Government of Canada, 2022a), affecting about 18% of children (up to 17 years of age; 1.2 million children) in 2019.
Divorce proceedings (especially custody battles) are highly adversarial, so much so that divorce is the second most significant non medical risk factor (after smoking) for mortality. The high cost of custody battles puts enormous strain on the parents’ wellbeing as well as their finances and depletes their resources which could instead be invested on their children. This indicates the current divorce laws are not working for the parents who are going through this difficult transition.
In those divorces with children, ~70-80% (depending on the province) are not in a shared co-parenting (physical custody) time arrangement and are not spending sufficient time with both parents.These children generally have a more difficult time forming a meaningful relationship with the non-residential parent (usually the Dad) and are at a higher risk of losing contact with that parent, as well as with the extended family from that side. Forty four percent of children do not have regular visits with their fathers after divorce. Current divorce laws lead to a very high rate of father loss and this not only has consequences for the children but also longer term consequences for the community as a whole, including violence against women.
Impact of father loss on children
Although many children who are raised by hard working single Moms or two Mom families do OK, children who lose their Dad (usually due to divorce) are at a much higher risk of a number of negative outcomes (although most of the research in this area has focused on loss of fathers due to higher prevalence, impact of mother loss is expected to be equal:
- They are 4 times more likely to attempt suicide (Velez and Cohen, 1988).
- They have at least double the rate of committing a crime and be incarcerated as both juvenile and adult (Kofler-Westergren, Klopf, Bernhard, 2010; Seidel, 2022)
- Children who have lost a Dad are 5X more likely to commit rape (Knight and Prentky, 1987)
- They have double the risk of running away from home and becoming homeless (O’Neil, 2002)
- Girls whose fathers left home before they were five years old are 8x more likely to get pregnant as adolescents (Ellis et al., 2003).
- Loss of a Dad is correlated with about triple the risk of substance abuse (O’Neil, 2002)
- Loss of Dad doubles the rate of dropping out of high school (Wilson 1998)
Loss of father is so traumatic that it can be detected at the cellular level
The impact of loss of a parent on the child (usually that means loss of a father) is so traumatic that it can be detected at the cellular level in the form of shorter telomeres. Telomeres are caps at the end of each of our chromosomes which are made of DNA. They are crucial for cell division. As we age, our telomeres get shorter and at some point they become too short and cell division stops and cells become senescent eventually leading to cell death. Telomeres are not only a marker for aging but also known to be a biomarker for severe trauma, and severe trauma is known to accelerate shortening of telomeres. In a study comparing the telomeres of children who had lost their Dad, on average they had 14% average shorter telomeres compared to the control children. Very significantly, this effect was 40% stronger for boys who lost a Dad than their sisters.
Loss of a father probably is passed on to the next generation
In a 2020 study (Karlsson et. al., 2020), the researchers looked at the brain structure of newborns of men who had experienced trauma as a child, adjusting for many factors including mother’s childhood trauma. Newborns of these men had alterations in the brain development in their brains’ white matter areas including the cingulum, corpus callosum, and uncinate fasciculus. These changes in the brain would put children at a higher risk of emotional dysregulation, anxiety, attention difficulties, impulsivity, and challenges in social interaction later in life. Relevant to our topic here is that the most significant risk factor for childhood trauma is loss of a parent, which in our society usually means loss of the Dad due to divorce. Therefore, the trauma of the loss of the Dad is likely epigenetically transmitted to the next generation with significant long term societal impact.
The biology closely correlates the social statistics and is probably causal
When we consider the cellular biomarkers of trauma in the form shorter telomeres, the altered brain development of newborns of men who experienced trauma as boys (a large proportion due to loss of their Dad due to divorce) combined with the social statistics presented above (higher risks of suicide, committing a crime, committing rape, running away from home, substance abuse, dropping out of highschool and teen pregnancy) a more clear picture emerges. The loss of a Dad has such a significant impact on our children that as a society we need to do everything possible to ensure children have maximum time with their both parents after separation. Otherwise we will risk significant and long term costs to our communities.
Equal shared co-parenting is now the gold standard in international divorce laws
In order to ensure the wellbeing of their children, many progressive jurisdictions now have incorporated equal shared co-parenting into their divorce laws. These countries include the Scandinavian countries, many other European countries and several states in the USA (many more US states are working towards bringing equal shared co-parenting legislation. Canada is lagging behind and it is time we learn from more progressive models of divorce laws.
What do Canadians want?
There has been a large number of public polls done on this topic and the response has consistently been positive for legislation for equal shared co-parenting and more and more are embracing this progressive social policy. In 2017 70% of Canadians strongly or somewhat supported legislation for presumption of equal shared co-parenting whereas in the 2022 poll this number had increased to 77%. This support has been consistent across all regions and genders.
Can we explain the current low percentage of equal parenting arrangements in Canada due to the large prevalence of abuse?
As discussed above, currently a large percentage of children (70-80%) after divorce have little contact with their non-residential parents (usually the Dad). Many attribute this lack of contact due to abuse such as intimate partner violence (IPV).
The issue of intimate partner violence has rightly received a great deal of attention in the past 20 years or so and starting in 1999 Statistics Canada started to survey Canadians regarding IPV as part of its General Social Survey on Victimization (GSS). According to their latest report using the 2019 GSS, 3.5% of Canadians over the age of 15 who have been in a relationship have experienced abuse by their intimate partner in the past 5 years. One percent have reported abuse in the past year. The breakdown of abuse by gender has been 61% female victims and 39% male victims in the 2019 survey (for the previous cycle of 2014 GSS survey, this breakdown was 45% female IPV victims and 55% male IPV victims).
Given the large discrepancy between these numbers (70-80% non equal shared co-parenting arrangements versus 3.5% abuse rate) and the fact the IPV gender gap is not as large as most people think (about half and half if we consider the last two statistics Canada cycles for the GSS), prevalence of abuse does not seem to be able to explain the low prevalence of shared equal co-parenting arrangements in the divorce outcomes.
Do fathers abuse children at a higher rate than their mothers?
Another explanation for the low equal shared co-parenting in divorce outcomes has been the belief that in most cases the low equal custody arrangement has been due to concern for the child’s safety. The fear of childhood abuse by fathers has been a significant concern for our society given the number of cases that make it to the front page news. Currently there is no good evidence from the research to show that this is actually the case. According to the Statistica Research in 2020, mothers tended to abuse children at a rate of about 54% higher than fathers. However, mothers spend more time with their children than their fathers and have more encounters with the children. Once we normalize this data by the type of family structure and so we can compare apples to apples (for example comparing abuse by single mothers versus single fathers) the rates of abuse by fathers versus mothers are almost identical (Gelles, 1989).
About the Canadian Campaign for Equal Shared Co-Parenting
The Canadian Campaign for Equal Shared Co-Parenting’s is a grass roots effort and its aim is to promote the reform of the divorce laws by amending the Divorce Act to state a rebuttable presumption of equal shared co-parenting. According to this proposed reform, absent special circumstances, by default each partner will have 50-50, or nearly 50-50 time with their children after separation. However, if there is a reason for the joint custody not being in the interests of the children (in situations including abuse, neglect or lack of caring capacity) the presumption of equal shared co-parenting can be rebutted by presenting evidence.
Such legislation is now the gold standard for international divorce law reform, although there is some variation in exact language. Jurisdictions that have incorporated such legislation include Scandinavian countries, other European countries (such as Spain and Greece), Brazil, and many states in the USA.
What has been the experience of countries with equal shared co-parenting legislation?
In a recent report, domestic violence after divorce decreased in regions of Spain where equal shared co-Parenting was introduced versus other regions (Fernandez-Krantz, 2020). Same studies also found equal shared co-parenting legislation resulted in lower teen risky behavior and better outcomes for Moms. Similar results have been seen from Kentucky which has experienced lower rates of intimate partner violence.
What Moms who have been in equal shred parenting say about their experience
A recent survey has highlighted the value of shared parenting for Moms as well. More equality in time-sharing single mothers have with their children’s father correlates with higher income and more reports of general wellbeing.
Consultation and due diligence
The campaign steering committee has taken several steps to gauge Canadians as well as stakeholders on the principle of equal shared co-parenting
In 2022 a Nanos poll was commissioned and found that 77% of Canadians (up from 70% in 2017) is strongly or somewhat in favour of equal shared co-parenting legislation.
Additionally the proposed amendment was reviewed by a panel of independent experts and this panel endorsed the main elements of the draft of the legislation. The stake holders for this consultation included leadership from from victim services, youth homlesmess, sexual assault support, women’s support, child protection background; academics from criminology, sociology, psychology, anthropology, gender studies as well as legal experts and those with lived experience.
Additional agency consultation with agency and advocacy stakeholders is planned for this fall and currently the campaign steering committee is doing extensive outreach to get input into language of the proposed draft.
Would implementing equal shared co-parenting eliminate all potential conflict and negative outcomes for children experiencing family break up?
No. This initiative will not end all cases of high conflict between parents where one or both parents have developed a strong purpose to hurt each other, regardless of harm such conflicts do to their children. Some will continue to use their children against their partner. However, this proposed legislation will have a strong potential to reduce conflict as parents will no longer have to be involved in custody fights and to escalate custody battles. Therefore, equal shared co-parenting will reduce potential for conflict and legal costs which not only hurts their own mental health and finances but also their children’s.
Closing thoughts
Our society often falls victim to our cultural inertia. Examples from human history are many but discussions around whether women should be treated equal to men or if other races living in the western world should have equal standing with the white majority are recent enough to serve as examples. Although this campaign for equal shared co-parenting is all about children and not about the rights of their parents, gender and gender biases have been playing an important role in keeping us stuck in the status quo of unfairly shifting most of the burden of child care to one parent that often causes them to become overwhelmed and effectively removing not only the other parent from the child’s life but also the whole extended family from that side.
It is time for a paradigm shift in our thinking and in the best interests of our children (and their parents) bring about equal shared co-parenting legislation which safely maximizes the time children spend with both parents (and their extended families on both sides) .
References
Bala, N. C. (2022). The 2021 Canadian parenting reforms: Is shared parenting the new normal? Queen’s University Faculty of Law Legal Research Paper. SSRN. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4058375
Ellis, B. J., Bates, J. E., Dodge, K. A., Fergusson, D. M., Horwood, L. J., Pettit, G. S., & Woodward, L. (2003). Does father absence place daughters at special risk for early sexual activity and teenage pregnancy? Child Development, 74(3), 801–821. https://doi.org/10.1111/1467-8624.00569
Fernández-Kranz, D., Nollenberger, N., & Roff, J. L. (2020). Bargaining under threats: The effect of joint custody laws on intimate partner violence (IZA Discussion Paper No. 13810). Institute of Labor Economics. https://www.iza.org/publications/dp/13810
Gelles, R. J. (1989). Child abuse and violence in single-parent families: Parent absence and economic deprivation. American Journal of Orthopsychiatry, 59(4), 492–501. https://doi.org/10.1111/j.1939-0025.1989.tb01620.x
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Wilson, C. (1998). Economic shifts that will impact crime control and community revitalization. In J. Travis & S. Rickman (Eds.), What can the federal government do to decrease crime and revitalize communities? Panel papers from the Executive Office for Weed and Seed Research Forum (pp. 9–14). U.S. Department of Justice, National Institute of Justice. https://www.ojp.gov/ncjrs/virtual-library/abstracts/what-can-federal-government-do-decrease-crime-and-revitalize