Moms and Dads: Equal Before the Law?

Moms and Dads: Equal Before the Law?

Back when children were still widely viewed as property, and property rights were something that men had and women didn’t, divorcing women automatically lost custody and guardianship of their children.

As a result of reforms which humanized both women and children, courts began to adhere to the “tender years doctrine”, which presumed that infants and toddlers were better off in the custody of Mom. At the same time, women were gaining rights to division of property that would, in theory, help them to provide for themselves and their children after divorce.

The tender years doctrine no longer operates as a legal presumption. It hasn’t for some time, but the Family Law Act of BC s. 40(4) specifically provides that “In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child” [Emphasis added].

One reason that the “tender years doctrine” fell out of favour was the increasing evidence—and the political will to recognize—that fathers are equally capable of caring for their children. In a significant proportion of cases (though still a minority), children may be more attached to their fathers than to their mothers.

But while there is no legal presumption that mothers make better primary care parents to small children, there is also no presumption that equal parenting is in the best interests of a child. Every case turns on “the best interests of the child”.

Sociologists present the intriguing idea that where power is already balanced closer to perfect equality, conflicts over the balance of power will be concentrated more on small deviant acts. For instance, between parents who are both capable of vying for primary care of their children, who are actually good candidates for a 50-50 arrangement, each may fight for sole custody on the basis of some relatively small criticisms:

She only feeds them vegan food, has a bad relationship with extended family, swears. He permits them too much screen time, sends them to school with unmended clothing, has allergenic pets in the house. They used to find each other tolerable: now each finds the other unfit to have the care of a child.

As lawyers, we often have to tell our clients that what is important to them will not be important to a judge.

Cutting the Baby in Half: a solution for Solomon and other Judges

For each party to maximize the finite time available, 50% is a mathematical imperative. But in many cases, the terms “equal” and “50-50” do not in any real way describe the way the parents divided the labour of child rearing while they were together.

For many couples, there is a mutual or a default decision for one party to concentrate more on career and earnings and one partner to leave more time available for child care and child transport—to the detriment of his (or more likely her) later earning potential.

After separation, it may be difficult for one or more parent to take on the dual roles of single parenthood, either the economic self-support aspect, or the parenting availability aspect.

There is a big old elephant in the room: the Federal Child Support Guidelines, which have been in place since 1997, dictate that a parent who has the child less than 40% of the time must pay the “table amount” of monthly child support to the other parent. Exceed that 40% threshold, and you may end up paying significantly less.

When arguing for greater custody, lawyers know better than to let on that a client is motivated by this factor, but in the background we know that the size of the child support cheque often operates in the minds of both parents.

The Federal Child Support Guidelines, in all cases, are designed to ensure that the child is receiving the appropriate amount of both parents’ resources, in whichever home the child resides. This design doesn’t always hit the mark. Sometimes spreading the resources over two homes equipped for the children means money is just thinner on the ground.

For many people, that is a difficult reality but the children are none the worse for it. If equal time with both parents is best for the children, so is spreading the resources over two homes.

Perfect equality is hard to achieve in any context. Time with children and costs of supporting them are tied up with the politics of society and the politics of your own marriage. The law in Canada is gender-blind, as written. The challenge for your lawyer is to make sure you understand the way the law will apply to your case, and make sure your situation is presented to the judge free from presumptions and sexist standards, old cliches or new cliches.

As always, parents who are able to work out a solution between themselves have more flexibility, predictability and costs savings than those who leave it to a court to decide.