Under our current legal system, most divorced fathers get less time with their children than their exes — and they have limited ability to do anything about it

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The Ins and Outs of Family Law in Canada

When Alan’s long-distance girlfriend, Allison, announced she was pregnant, Alan was shocked. They had known each other in high school and then met again many years later after losing touch. Their fling was intense, but casual, involving no expectations and no more than two or three visits to each other’s cities over a few weeks in early 2010. So, when Allison dropped the bomb, Alan couldn’t believe it. Allison had assured him she was on the pill. And they were far from being teenagers anymore. 

The two (whose names have been changed to protect their privacy) agreed to have the child and try to make their relationship work. Alan made it clear that he intended to be part of their child’s life in a big way. 

Their biggest problem was where to live. His career in the oil and gas industry confined him to Calgary, and Allison, who was divorced and already had a child from a previous marriage, was effectively confined to the Toronto area by the terms of her ex-husband’s access schedule. Neither could budge, realistically.

So they attempted the impossible: they continued their long-distance relationship, thinking the arrangement might only be temporary, with him visiting Toronto every two weeks. Alan also sent Allison money to support her and her child by her first marriage during her pregnancy. 

Approximately 8,000 couples divorce every year in Alberta, according to Stats Canada.

Despite their good intentions, they argued constantly about their living arrangements, and the relationship ultimately broke down around the time their son, Aidan (his name has also been changed), was born in October 2010. Allison filed an action with the family law court in Ontario, demanding sole custody of Aidan, child support and, though she and Alan had never been married and had never lived together, spousal support and a large share of Alan’s personal assets. Alan says he agreed to a number of Allison’s demands in the hope his generosity would encourage her to let him see his son, but Allison still prevented Alan from seeing Aidan for eight months of his life. 

By June 2011, their lawyers had negotiated a temporary schedule of supervised access. Alan could visit with his son only with Allison present. Despite having a legally binding agreement, his time with his son was not what Alan had expected. Allison interfered with his attempts to play with Aidan, to hold him or even speak with him. She ended their visits prematurely. She failed to show up with Aidan where they had arranged to meet — not once, but multiple times. Alan would try to reach Allison through her lawyers — something that’s not easy to do on a weekend — and he would sometimes end up packing his bags and returning to Calgary without having seen his son at all. 

The court’s early reluctance to assist Alan in his attempts to fulfill his role as a parent may have been compounded by the unusual facts of the situation. Alan living thousands of miles away from his son may have supported the judge’s apparent conclusion that he lacked the necessary paternal commitment, despite his sincere inability to switch jobs. Alan argued that, as an oil and gas engineer, he was hardly in a position to leave Calgary without harming his child financially.

Like other fathers, Alan wanted to spend the amount of time with Aidan he was entitled to and with the full support of the family law court. Alan was not easily deterred by cost, distance or even Allison’s behaviour. He meant it when he said he wanted to be a big part of his son’s life, and he decided to fight for just that.

Over the last 20 years, children in Alberta were more and more likely to reside with their mother following their parents’ separation.

New litigants in family law court quickly learn that “joint custody” of the children does not mean equal physical custody. Rather, a parent with “joint custody” simply has the right, as a legal guardian, to be involved in important decisions about a child’s life, such as education, health and religion. What Americans call “physical custody” and Canadians call “primary residence” indicates where the child will live, and it’s generally decided in favour of mothers, meaning most fathers do not have the opportunity to spend as much time with their children as mothers do. 

The terminology has changed in Alberta’s legislation in the last decade — “guardianship” is now used in favour of “custody,” and “parenting” in favour of “access” — but mothers still maintain the primary residence for the children in a majority of cases. 

Over the last 20 years, children in Alberta were more and more likely to reside with their mother following their parents’ separation, rising from nearly 69 per cent in 1991 to nearly 76 per cent in 2006, the most recent year a survey of this kind was conducted. And that trend is expected to continue. 

By contrast, social norms have changed quickly in North America in recent years: men expect and are increasingly expected to participate more in their children’s lives and frequently with the full support and encouragement of their partners. Recent research indicates mothers and fathers working outside the home currently spend nearly equal amounts of time raising their children. For today’s fathers, that’s a vast increase in time spent with their children compared to the previous generation of men. And many fathers want to continue that increased level of involvement with their children, even if their relationship with the mother has fallen apart. 

As the summer of 2011 wore on, Alan was granted unsupervised visitation by the family law court, which meant he was able to pick Aidan up and take him — without Allison — for a few hours at a time to Alan’s family’s home in Toronto, where Alan stayed during his weekend visits. Meanwhile, Alan’s job in Calgary allowed him more freedom to visit Aidan more often. Allison said she would comply with Alan’s requests for increased time with Aidan, but only if he agreed to increase his support payments.

Eventually, Allison’s and Alan’s lawyers negotiated a one-time spousal support payment, increased child support and Alan’s agreement to cover the cost of daycare, in exchange for an arrangement that let Alan have Aidan at his family’s house for daytime visits three days every other weekend. 

As unusual as Alan’s story is, he has a lot in common with other Calgary fathers who are similarly frustrated in their attempts to spend more time with their children.The anecdotal evidence of one discouraged Calgary father does not prove the widespread suffering of fathers in general, but the number of men in Calgary who would like more time with their children following divorce potentially runs into the many hundreds. 

Approximately 8,000 couples divorce every year in Alberta, according to Stats Canada; about half of those need to settle on terms for their children’s living arrangement and support. The children live with their mother in 75 per cent of those divorces in which a court order was issued — as many as 1,000 Calgary households per year. 

Although 80 per cent of all divorces are uncontested, or what lawyers call “desk divorces,” it’s impossible to know how many of those cases involve parents who reached agreement in a spirit of cooperation or through a sense of defeat, with fathers just giving up on providing a primary or alternative residence.

Alan was frustrated he had little ability to enforce his right to see Aidan, even for the limited time he was supposed to have with him. In theory, a judge could have forced Allison to comply with their visitation agreement by threatening her with a fine or incarceration for contempt. In practice, however, a judge may not have wanted to invoke a penalty that could indirectly harm her child.

As well, it’s difficult and inappropriate to get the police to enforce civil access orders. That was the conclusion of three-quarters of the judges and lawyers, a large proportion of them from Alberta, attending a 2006 Canadian Department of Justice workshop on access enforcement, and none of them thought that provincial access enforcement legislation was adequate. The vast majority — all of them legal professionals — agreed that, when access was denied, it was often a manipulative tactic on the part of the custodial parent. 

On the other hand, where the law fails, money often succeeds. Calgary lawyer Victor Vogel of Vogel Lawyers says his firm has been able to enforce interprovincial access with the help of a judge, though he admits it is expensive to do. “If they have the resources, we rarely have trouble getting access,” he says. “We’ve had orders that, if they’re not complied with, the person is arrested. The judges will have no problem, if the person is obstructing access, issuing those orders.” 

But many litigants in family law proceedings do not have the resources even to hire a lawyer, much less enforce visitation orders through motions exclusively filed for that purpose. Even somewhat wealthier litigants, like Alan, find themselves quickly blowing through their savings and RRSPs in pursuit of fairness if there’s a fight.

In 2012, 59 per cent of all cases across Canada involving child support orders were registered with various maintenance enforcement programs. 

By contrast, divorced mothers have a much more responsive and aggressive — not to say easier — enforcement procedure available to them when the father doesn’t pay timely child support, also called “maintenance.” (It’s available to fathers, too, for the handful of fathers receiving child support from their children’s mothers.)

The maintenance enforcement programs (MEPs) in place across Canada were set up to insure that “deadbeat dads” live up to their responsibilities. An MEP is essentially a provincial government collection agency working on behalf of custodial parents with the power to suspend driver’s licences, impound automobiles, prevent the processing of passport applications and report a debtor to credit rating agencies, in addition to the usual dunning notices, harassing telephone calls and garnished wages. 

In 2012, 59 per cent of all cases across Canada involving child support orders were registered with various MEPs, according to a report published that year based on a 2006 survey. Seventy per cent of those cases offered no concerns to the MEP administrators. The registered payers of child support (96 per cent male) generally paid on time and paid the full amount. Only 30 per cent were in arrears, and only half of those were chronic debtors to the MEP system. Fortunately, then, there are relatively few “deadbeat dads,” and there’s a system in place to encourage their better behaviour.

The first three months of Alan’s new access arrangements with his son over the summer of 2011 were difficult. Allison fought him on every request and every point of contact, frequently arriving late or not at all, but that was nothing compared to what followed.

From the fall of 2011 on, as Alan’s involvement with his son increased, Allison became more and more difficult. On one occasion, she rammed his shins with the baby stroller and later called the police accusing him of ramming her. On another occasion, Allison sent the police to Alan’s family home on an accusation of child abduction, even though Alan had a judge’s order allowing him to keep Aidan overnight. The police forced Alan to relinquish Aidan to their care, threatening to arrest him if he refused. On yet another occasion, Allison involved the police when Alan telephoned to say he might be late returning Aidan due to car trouble. As it turned out, Alan wasn’t late when he arrived at Allison’s house at one minute to five. Two police officers greeted him, scratching their heads; they had been told that Alan was abducting Aidan. 

When Alan became unemployed in the spring of 2012, he wanted equal time with Aidan and requested that the court consider a shared parenting arrangement. A large number of separated parents opt for “shared parenting,” which means the child spends equal or close to equal time with each parent, moving back and forth between residences. Courts rarely mandate such arrangements without the prior agreement of the parties involved. 

This is backwards, suggests Edward Kruk in his seminal 2008 article, “Child Custody, Access and Parental Responsibility.” Kruk, an associate professor of social work at the University of British Columbia and leading advocate for shared parenting, argues it should be made the presumptive parenting arrangement for all parents following a breakup, barring any factor that would put the child in danger, and not just for those enlightened few who agree to the arrangement on their own. Kruk says children from broken families are better off when they get to spend close to equal time with both of their parents.

The idea of forcing children to travel between households to spend equal time with each parent may sound far-fetched, but not only is “equal and shared parenting” the norm in the United Kingdom and New Zealand, it was recommended in 1998 by a joint committee of Parliament in a report entitled For the Sake of the Children as a necessary reform to Canada’s Divorce Act. In Canada, the recommendation was never adopted. 

Other Calgary men, like Brad (his and his family’s names have also been changed), seek more time with their children as well, verging on, if not explicitly requesting, shared parenting arrangements. 

Brad made a big mistake. Like so many others whose technological indiscretions have led to accusations and divorce, he exchanged a number of inappropriate, flirtatious e-mails with another woman, and his wife found out. Who knows where those e-mails would have led, but Brad swears, as he did to his wife, Barbara, that he hadn’t cheated on her — not in any physical sense, anyway. Still, she insisted he move out. 

That was five years ago.

Barbara was pregnant with their son, Benjamin, at the time. She also had a daughter, Becky, by her first marriage, which ended when Becky was only a baby. Brad legally adopted Becky as his own daughter when he and Barbara were living together before they were married. It’s a responsibility that Brad still takes very seriously now that Becky is nine; Brad is the only father Becky has ever known.

After the split, Brad bought a house a few blocks away from Barbara so he could be close to his children, live within the same school district and generally increase his chance of being involved in their lives.

Once the children spend more than 40 per cent of their time with the father, the mother stands to lose at least some part of the child support. 

At first, Brad saw his children two evenings a week and every other weekend. Then, two years ago, court-ordered visitation was settled at two weekday afternoons a week, every other weekend and one weekday overnight every other week. It was a much better parenting arrangement than many fathers have, but Brad wanted more. He had his children between 37 and 39 per cent of the time — Brad likes figuring the math — and knew he might be eligible for a decrease in child-support payments if his visitation time with the children exceeded 40 per cent. “I hate the term ‘visitation,’ ” he says. “They’re my children, after all.”

The 40 per cent rule is a huge source of conflict in Canadian family law. The Federal Child Support Guidelines permit a decrease in the amount of child support a payer might pay to the custodial parent if he has his children more than 40 per cent of the time. Legal professionals find this arbitrary rule problematic. “The unfortunate thing about having this definite percentage is that it’s caused a lot of conflict,” says Michelle Brandt, a Calgary lawyer with Vogel Lawyers. In part, it gives mothers a financial incentive to discourage their children from visiting their fathers. Once the children spend more than 40 per cent of their time with the father, the mother stands to lose at least some part of the child support. 

On the other hand, the 40 per cent rule also provides a financial incentive for fathers to try to get more time with their children, whether or not they would have been otherwise motivated to do so. Overall, the child support guidelines have been beneficial. They were developed in part to reduce conflict in family law cases, according to Joseph Hornick, past executive director with the Calgary-based Canadian Research Institute for Law and the Family (CRILF), and, since their introduction, they have achieved that goal. 

“We actually did the evaluation of the Child Support Guidelines through Justice Canada,” says Hornick. “It was about a five-, six-year project. One of the major goals of it was to lower the conflict, and we documented quite well that it does it.” In addition, as the guidelines establish a formula for determining consistent and predictable payments, they have improved on the former discretionary and costly system of determining payment schedules on a case-by-case basis.

The legislation governing family law, as written, is gender-neutral, and most judges are fair-minded, trying to apply the law impartially. Still, many believe that men are discriminated against in family law proceedings in Alberta, so says a majority of the Alberta respondents who had personal experience with child custody and access issues surveyed in a 2006 study conducted by CRILF. The report concluded that the respondents perceived a bias in favour of mothers and that the system penalized men, regardless of either parent’s conduct.

But placing children in the residence of the mother may not reflect a bias against fathers, as many assume. “Mothers tend to provide more of the care of children, especially very young children,” says Brandt. “That’s a reflection of what’s still the reality.” In other words, the bias may be toward caregivers — not mothers, per se — in an effort to provide for the best interests of the child. 

Researchers and lawyers have been arguing for years that the practice of family law in Canada is deeply flawed, and some justices on the Supreme Court of Canada apparently agree.

Chief Justice Beverly McLachlin set up a committee to address what has been described as “unmet legal needs” in the area of family law. In April 2013, the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters, chaired by Justice Thomas Cromwell, published 33 recommendations for changes to family law across Canada.

In its final report, Meaningful Change for Family Justice: Beyond Wise Words, the committee identified numerous areas of concern, including the high cost of litigation, the relative lack of government funding for the administration of family law, the amount of time and resources family law takes up in our courts and the relatively few law students and lawyers expressing interest in practicing family law. The committee also identified the adversarial nature of our legal system as particularly destructive in the area of family law, encouraging a small, but significant number of litigants to behave unreasonably, taking a huge amount of the court’s time and having an untold cost on the litigants and their children. The committee recommended harsh penalties for particularly unreasonable litigants. 

The majority of the committee’s recommendations, however, were systemic, structural or procedural, including, for example, mandatory mediation programs and the creation or expansion of government education and support agencies. These are good recommendations, which address mainly financial barriers to justice.

The committee approved of the MEPs as a less-costly alternative in support enforcement, and recommended the creation of a program to supervise access and the exchange of children between parents in situations involving conflict over access. This would be a step in the direction of access enforcement currently limited or unavailable in Canada.

That’s cold comfort for Alan for whom legal innovation can’t come soon enough.

In addition to seeking a shared parenting order in 2012, Alan asked the court to clarify a number of items: He wanted local travel restrictions lifted, telephone visits enforced and joint custody ordered so that Aidan’s daycare administrators would recognize Alan’s guardianship. Alan also spent thousands of dollars in legal fees trying to obtain a slightly expanded summer schedule. Between Allison’s and the court’s schedule, the hearing was delayed from May to October, when a judge finally heard the matter, by which time the issue of an expanded summer schedule was moot and the money spent on it a waste. The judge, who Alan says was dismissive toward him and solicitous of Allison, ruled on only a couple of points and refused to review other parts of Alan’s petition. The case was too complicated and contentious, said the judge, requiring the testimony of witnesses at a full trial, which was set for the late spring of 2013. 

“All I want is reasonable access to my son and to have an influence in his life,” says Alan. He doesn’t think the judge who heard his case was biased against men. He says the agony he has endured over the past three years was the result of getting involved with the wrong woman.

And, in a sense, that’s one of the issues the Family Justice Working Group tried to address when it called for stiffer penalties assessed against unreasonable litigants. Perhaps the committee recognizes the simple — almost simplistic — rule that people who act reasonably toward each other have little cause to worry about discrimination or judicial bias.

Only approximately one in 10 divorced Alberta couples engage in long and nasty conflict, according to Stats Canada.

Alan and Allison attended a pre-trial hearing with a new judge in early 2013. The judge warned Alan that the likelihood of his obtaining joint custody at trial was slim, given his continued residence in Alberta, and that shared custody was not even a possibility. The judge also warned Allison that she did not have any choice about obeying access orders and that it was in both parties’ best interest to come to an agreement, rather than go to trial. Alan and Allison visited a court mediator that afternoon and agreed to a long-term access schedule, expanded travel within the Toronto area with Aidan and important education decisions. 

Alan was relieved for a time that the agreement seemed to be working, but says he still has no cooperation from Allison on matters that should be easily resolved, such as minor adjustments to child support and local travel arrangements. As well, Allison has continued to call the police on several occasions, complaining that Alan or his family is abducting Aidan. Generally, Alan says, the police arrive, take statements and send everyone home, saying they don’t get involved in reading court orders or settling domestic disputes. And they are probably right, but it shows how badly the system needs an innovative form of conflict resolution.

Despite all the difficulty, Alan says his relationship with Aidan is stronger than ever. Fortunately, only approximately one in 10 divorced Alberta couples engage in long and nasty conflict, according to Stats Canada; presumably, the majority of separated or divorcing parents are more interested in the welfare of their children than arguing with each other. Sometimes, the fight in high-conflict divorces becomes so huge, the children’s needs are ignored. Worse, the children are used as pawns in their parents’ strategy to win the fight. 

Overall, it’s in the best interest of the children and of our society to insure that fathers are involved in their children’s lives, barring any good reason why they should not be — it’s almost a truism. But there’s a larger lesson that our culture — with its laws, its committee recommendations, its shared parenting agreements, its push-pull struggle for more post-separation parental involvement — seems to be converging toward: that, when we continue to treat the family as a unit, forced by their relationship to develop strategies to help each other — even, or perhaps especially, a family that is breaking apart —we benefit not only the children, but the parents, as well.

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