Default Presumption of Shared Physical and Legal Custody in Canada

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Melonie Kilby started this petition to Doug Ford and

According to Canada’s Department of Justice, in 1996 cases of court-ordered custody, 79.3% of all rulings awarded exclusive custody to the mother, 6.6 % ruled exclusive custody to the father, and 12.8% ruled in favour of shared physical custody. In 2015, prior to any court proceedings, separation of the parents resulted in 86.8% of children residing with their mothers, while only 2.5% of children lived in an equally shared arrangement (Department of Justice, 2015). Based on the figures on court-ordered custody, 59.9% of all children from divorce did not have both their mother and father as an active and consistent role within their life. Most compelling is the fact that even after custody cases were heard by a court appointed judge, “only 7.5% of child(ren) obtained shared custody with both of their parents” (Department of Justice, 2015).

There have since been significant changes to court granted physical and legal custody orders. Between the years of 2012 to 2015, 26.5% of physical custody (parenting time) orders were ordered to be shared and 65.4% of legal custody (decision-making) were ordered to be shared (Statistics Canada, 2017). Unfortunately, means that over 70% of children were not living with both parents equally, and that just under 50% of children did not have parents who were equally able to make decisions for them. This advocacy campaign, prepared in collaboration between me and Melonie Kilby, will propose that post separation, Ontario parents will have shared physical and legal custody of their child(ren) immediately after separating. We are advocating for this reform to be legally embedded into legislation and defined as the presumption prior to a family court proceeding being commenced that both parents who have separated but have not yet begun a family court proceeding have shared physical and legal custody of their child(ren). 

We recognize that the best-case scenario is that both parents can come to a mutually agreed decision of having shared custody. When this becomes impossible to achieve, the decision is then left to a family court judge. We feel that the issue itself is not the law, rather the process that follows in the event of a divorce. “There may be ongoing conflicts with the ex-partner or battles in court that negatively affect parent–child relationships and parenting, making it difficult for either parent to focus on the children’s priorities” (Canadian Pediatrics Society, 2021), This raises the question as to why courts being prolonged and exposing children to levels of conflict that interfere with their parents’ ability to focus on their best interest. With the proposed default shared custody, issues such as prolonged cases would not impact the much-needed relationship between parent and child, which is undeniably serving the best interest of the child.

If there was already a presumed shared custody post separation, then parents would not need to attend court as often. Instead of fighting for shared custody (equal rights to their children) they would already have those rights and would only attend court if there is a child protection issue. To answer this directly, we are fighting for reform of the legislation because we believe it is the best step in making change for Canadian children.

As directors of the campaign we are targeting this campaign to Ontario legislation, the Children's Reform Act. We are not limiting this petition to Ontario, rather encouraging all Canadian to join us. We want every province to have a default presumption of shared physical and legal custody post separation. 

0 have signed. Let’s get to 100!
At 100 signatures, this petition is more likely to be featured in recommendations!