On May 28th, Bill C-560, which sought to make equal parenting time the standard parenting arrangement in all divorces across Canada, was defeated in the House of Commons by a vote of 174 to 80.

Sponsored by Saskatchewan MP Maurice Vellacot, the proposed bill would have amended the federal Divorce Act to include a presumption that both parents should have equal custody and parenting rights unless factors or evidence in the case demonstrated that it was in a child’s best interest for primary custody to be allocated to one parent over the other.

Although Bill C-560 was defeated at its second reading in May 2014, the proposal offered an interesting and rare opportunity to review the current legal principles for determinations of custody following separation.

The “Best Interest” Standard



Under the current law, custody (as well as access or time sharing) is determined based on the best interest of the children involved. That is, there is no presumption that shared parenting is in a child’s best interest, although courts may certainly order joint custody and/or shared parenting if they determine that it’s in a child’s best interest for both parents to have equal decision-making ability and/or time with the children. However, because there is no legal presumption of shared parenting, a divorcing parent cannot presume that he or she will receive equal parenting time or say in decisions to be made.

Proponents of Bill C-560 have argued that the best interest standard is out of step with modern culture. Today’s parents, they contend, have evolved from “traditional” gender roles in which a mother is always the primary caregiver with a father taking a lesser role. Supporters of equal custody legislation seek to equalize the playing field among divorcing moms and dads; they point out that one parent (and traditionally the father) are often forced to fight long, expensive custody battles just to gain equal custody and access rights to their own children.

Although there are many professionals, including both lawyers and judges, as well as social workers and other professionals, who may support the introduction of some type of presumption which would help in the assessment of the ever confusing “best interest” test and factors set out in the legislation, there was significant concern over the impact that Bill C-560 would have over current custody and access arrangements since its enactment would constitute a material change in circumstances to allow parties to bring a claim to vary previous orders or agreements. Given the heavy backlog which the family court is currently experiencing, the potential influx of litigation from Bill C-560 could have resulted in additional hardship for the judicial system and the families attempting to navigate its terrain.

Only time will tell whether the “best interest” test for custody and parenting determinations will see legislative reform through another avenue.