Shared Parenting in Canada: Increasing Use But Continued Controversy

• Author: Karine Poitras,Nicholas Bala,Michael Saini,Rachel Birnbaum,Francine Cyr,Shawna LeClair
• Date: 01 October 2017
• DOI: http://doi.org/10.1111/fcre.12301
• Published date: 01 October 2017

SHARED PARENTING IN CANADA: INCREASING USE BUT

CONTINUED CONTROVERSY

Nicholas Bala,* Rachel Birnbaum, Karine Poitras, Michael Saini, Francine Cyr, and

Shawna LeClair

There is a complex interplay between federal and provincial parenting statutes in Canada. Although most statutes continue to

use the traditional concepts of “custody” and “access,” in practice most lawyers and judges use more child-focused terminol-

ogy for parenting plans. There is a lack of reliable data on postseparation parenting in Canada, though a number of studies and

data sources clearly indicate that there is growing use of various forms of shared parenting. Child support law in Canada

defines “shared custody,” as occurring if each parent has the child at least 40% of the time, and this arrangement currently is

used in about a fifth of parenting orders. Reform of the parenting-related provisions of Canada’s Divorce Act remains conten-

tious. We argue for statutory change to abandon the archaic terminology of “custody” and “access” and for adoption of more

child-focused terminology. We do not support proposals made by fathers’ rights advocates in Canada for a presumption of

equal parenting time.

Key points for the Family Court Community:

Although most Canadian statutes continue to use “custody” and “access” terminology, in practice lawyers and judges

are often using more child-focused concepts, such as parenting time and parental responsibility.

There have been great changes over the past thirty years in postseparation patterns of parenting in Canada: only a

minority of cases now involve the traditional “custody to mother and access to the father” arrangement, with some

form of shared parenting (shared custody or joint legal custody) now being the most common arrangement.

About one in five postseparation parenting arrangements in Canada involve “shared custody” (where children spend at

least 40% of their time with each parent), with about half of these involving roughly equal time.

The prevalence of different types of parenting arrangements varies markedly by province, with shared custody being

more common in provinces where there has been legislative reform.

Research from Canada suggests that in this country shared parenting is more likely to be the result of negotiated

arrangements than court orders. Shared custody imposed by courts occurs more often when parental conflict is lower

and children are younger. Shared custody also appears to be related to parenting roles during cohabitation, as well as

higher parental income.

Qualitative Canadian studies suggest that in a significant portion of cases, shared custody is often not a durable

arrangement, but can be a positive experience for many children and parents.

Keywords: Divorce Act (Canada); Joint Custody; Postseparation Parenting; Reform of Parenting Laws; Shared Custody;

and Shared Parenting.

I. INTRODUCTION

The traditional postseparation parenting regime in Canada was based on one parent (usually the

mother) having sole custody and full legal responsibility for the child, while the other parent (usually

the father) has access with a limited set of rights and role. Although this traditional regime still has

legislative recognition in Canada, there has been a significant decline in its use. There has been grow-

ing use of various forms of shared parenting in Canada, though the concept has only limited statutory

recognition and lacks reliable data on the extent of its use. Under Canadian law, “shared custody”

occurs when each parent has responsibility for the child at least 40% of the time. In contrast, the

Correspondence: bala@queensu.ca; rbirnbau@uwo.ca; karine.poitras@uqtr.ca; michael.saini@utoronto.ca; francine.cyr@

umontreal.ca; shawna.leclair@queensu.ca

FAMILY COURT REVIEW, Vol. 55 No. 4, October 2017 513–530

V

C2017 Association of Family and Conciliation Courts

concept of “shared parenting” is more broad and vague, referring to a range of arrangements that

have both parents significantly involved in postseparation care and decision making, including

shared custody, but also arrangements with lower and specific time thresholds.

Part II reviews the legal framework for parenting care and decision making in Canada. Most stat-

utes governing postseparation parenting in Canada continue to use the archaic concepts of “custody”

and “access,” though there has been legislative reform in some provinces and there is growing use of

various forms of shared-parenting terminologies. In Part III, data are considered on the extent of use

of shared parenting in Canada. Governments in Canada do not collect data on postseparation parent-

ing, and each of the available data sources has its limitations. However, drawing on a number of

sources, including some research recently undertaken specifically for this article, we conclude that at

least one fifth of postseparation parenting arrangements in Canada now involve shared custody,

defined by at least 40% of time with each parent, and that more than two thirds involve some form of

joint legal custody or shared decision making. Our work also reveals significant variation across the

country and that the use of shared parenting has increased the most in jurisdictions where there has

been legislative change, such as in British Columbia, Alberta, and Quebec, where statutory reform

has abandoned the traditional custody and access concepts.

Part IV reviews the limited empirical research on shared parenting in Canada. One study suggests

that shared parenting is more likely to be the result of negotiated arrangements than orders by the

courts. Another study indicates that shared-custody arrangements also appear to be related to parent-

ing roles and responsibilities prior to separation, as well as to higher parental income. A study of

reported Canadian cases finds that judges are more likely to order shared custody when parental con-

flict is low and when children are younger. Another recent qualitative study suggests that in many

cases shared custody may not be a stable long-term arrangement, though it does remain positive for

many children and parents.

In Part V, we discuss the controversies regarding efforts to reform the parenting-related provisions of

Canada’s Divorce Act. We express opposition to a recent proposal, put forward by a Conservative politi-

cian, that would have enacted a statutory presumption of equal parenting time; although legislative

reforms should encourage shared parenting, there are cases where safety concerns require that parenting

time be restricted, supervised, or even suspended. In Part VI, we offer some concluding comments on

the Canadian experience. Based on a comparison of experiences in different provinces, it would appear

that the reform of parenting legislation may both reflect and support the increased use of shared parent-

ing. The Canadian experience also reveals that significant changes in practice and professional culture,

and increases in the use of shared parenting, can occur without legislative reform.

II. CANADA’S LEGAL CONTEXT

A. CONSTITUTIONAL COMPLEXITY

There is a complex interplay between Canada’s federal and provincial legislation governing par-

enting postseparation and divorce. The present federal Divorce Act came into force in 1986,

1

and, at

least in terms of constitutional theory and the Canadian doctrine of federal paramountcy,

2

governs all

cases where separated parents are getting a divorce. The concepts of custody and access are used in

the Divorce Act, though the Act also allows for parents to have joint custody. Each province (and ter-

ritory) also has its own statutory regime for parenting, which at separation, only directly governs

parents who are not divorcing, generally those who have cohabited without marrying or who never

cohabited. In practice, however, provincial legislation has had an effect on how judges in different

provinces are interpreting or applying the federal Divorce Act in that province.

3

In particular, as will

be discussed, Alberta, British Columbia, and Quebec have adopted legislative regimes that have

moved away from the concepts of custody and access. Courts in those jurisdictions are making

greater use of various forms of shared parenting, even when dealing with cases under the Divorce

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