On May 28, 2014, Bill C-560, referred to as the “equal parenting bill”,  was defeated at Parliament (174:80).  The Bill proposed to amend the Divorce Act in a way that would create a presumption for the courts to grant equal parenting time and responsibilities to each parent, with the opportunity for either party to demonstrate that the other is unfit.

As it stands, the courts, in accordance with the Divorce Act, are mandated to simply consider a child’s best interests first and foremost in parenting matters such as custody, guardianship, and access.  This model represents a systemic belief that a child’s needs and interests should be given the utmost priority and weight in deciding such matters.   This model has been criticized as favouring mothers over fathers.  It gains support, however, in that it aims to refocus contentious custody battles towards the child’s welfare, a goal that the parents  are likely to agree upon.

Bill C-560 sought to level the playing field which historically favours the mother. This bias was encapsulated in the  “Tender Years Doctrine”.  The belief said that young children – generally under the age of four – needed their mothers more than their fathers.

In order to prevent these historical inequities from continuing, Bill C-560 intended to give parents equal rights from the very beginning and only allowed those rights to be removed in extraordinary circumstances.  For example if one parent struggles with a drug addiction or a history of physical harm to the child, an alternative arrangement could be granted as required.

So why did the majority of Parliament vote against Bill-C560?  Ultimately, the Bill was defeated because its terms prioritized parental rights above the best interests of the child in determining parenting time and parental responsibilities.  The result of this decision is that the Divorce Act will not be amended and courts will continue to strive for decisions that are structured around a child’s needs and interests in order to create an equitable outcome for the child, primarily with the parental needs as one of many considerations.   In no way, however, does this approach to deciding parenting matters preclude equal parenting time and responsibilities; and in many cases, equal parenting is decided to be in the child’s best interests.

Catharine Schlenker
Student at Law
University of Victoria