The family law courts are leaning on presumptive, subjective standards when it comes to assessing what makes a good parent, says Toronto family lawyer Brian Ludmer.
“A lack of understanding of assessing parenting is bedevilling family law,” says Ludmer, principal of LudmerLaw.
“It’s not being done on an evidence basis, but on an experiential, unstructured basis; and that is doing a disservice to our children and to our family law litigants.”
Ludmer tells AdvocateDaily.com that depending on stereotypical norms, such as the idea that “stay-at-home parents innately know better how to care for their children but working parents do not,” is unfair and results in custody and access arrangements that don’t take evidence-based standards of parenting into account.
The Supreme Court of Canada has noted in cases such as Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC), to not make presumptions about whether a mother or father inherently makes a better parent, Ludmer says.
“But nowhere in reported cases do you really see a structured approach to normative parenting – what are the specific topics and specific knowledge and skill-sets and parenting styles that one should aspire to and how are they weighted?”
“And if we’re true to the literature on equal-shared parenting, and the principle of maximum contact in the Divorce Act, then we need something much more objective.”
Ludmer says there should be a more careful analysis of each parent’s ability to meet objective standards using recognized diagnostics. Instead, the courts rely on situational evidence, he says.
“How do we assess parenting and where are the resources?” he asks. “They’re disparate, and somewhat accessible but more needs to be written.”
Ludmer believes university-level textbooks could provide some structured analysis of modern parenting techniques.
These could be found in fields such as the social sciences, social work, psychology, child psychology or more specialized topics on sleep issues, difficult children, anxiety and trauma.
For example, if a child is identified as having developmental challenges, it should not automatically be assumed that either parent is inherently better suited to meeting those needs.
“What do we expect of parents if we’ve identified the need? What are we looking for?” Ludmer asks. “They should be cognizant of an ability to express the fact that their child has some kind of emotional regulation issues. The parent should get advice from a social worker or other experts, deploy those strategies, and adjust parenting accordingly.”
In an intact family, parents are not so clearly under the microscope, Ludmer says. However, in a separation, the actions (or lack of actions) taken by either parent, and any flaws in parenting knowledge or styles can come under intense scrutiny.
Ludmer says the courts should encourage curiosity and continuing education about child-rearing techniques — going above and beyond what “comes naturally”.
“We need the courts to start defining a basic understanding of what normative parenting is and what to look for. Counsel should put that question to the experts who are testifying.”
Documentation of books read, courses taken and experts consulted could be used as evidence to bring to court.
“You need a licence to drive a car but you don’t need a licence to raise a child, and you can do a lot of damage with maladaptive parenting practices,” he says.
“Certainly in separated families where children are exposed to more stressors, you would think parents would want to fine-tune their parenting skill sets.”
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