Custody battles might get more complicated, if such a thing is possible, thanks to what the Canadian government wants to do to religion. They don’t intend to do anything to religion itself, of course, but section 1(7) of their proposed Bill C-78 amendments to the Divorce Act says the family law notion of “religion” will expand to include “spirituality,” with “language” and “culture” thrown in for good measure. In other words, they want to take something that many people didn’t care very much about, and make it so they will care.

As it stands now, religion is one of the traditional “big three” parental decision-making powers that make up “custody,” the other two being education and healthcare. And because many people don’t ever set foot in a house of worship, the religion power can be a wonderfully ethereal bargaining chip for family lawyers, especially when the divorcing parties are no longer on speaking terms and therefore custody must be divvied up under a “parallel parenting” scheme: he gets education, she gets healthcare, and let’s also give her religion to sweeten the deal. The family is not religious, so it won’t be an issue. This way, mom gets the power to decide exactly which house of worship the kids will not attend, and unless she decides to join the Church of Scientology out of spite you’re good to go.

If Bill C-78 passes, suddenly we will have spirituality, language and culture lumped in with religion, making it far from meaningless. This is not to say that including language and culture as custodial powers is a bad thing – on the contrary, it reflects the diversity of Canadian society. There are many different languages and cultures in this country and they are, naturally, quite important to people. So it makes sense that family law should be clear about who gets the power to decide these things for the children. On the other hand, creating these new powers could become an enemy of diversity. For instance, what if mom speaks Portuguese and dad speaks Mandarin? Would it be in the best interests of the children to eliminate one of these languages? If Bill C-78 passes, it’s hard to imagine that this issue won’t be litigated ferociously.

(Section 1(7) of Bill C-78 also adds “significant extra-curricular activities” to the big three powers, which is weird because even if you have sole custody you can’t schedule activities on the other parent’s time without their consent, and you can’t choose activities that the other parent can’t afford to contribute to, unless you are prepared to pay the entire tab.)

Another thing Bill C-78 proposes is to re-name “custody,” calling it instead “decision-making responsibility.” This sounds less momentous and less harsh than “custody” but it still boils down to the same thing, and if one parent gets all the “decision-making responsibilities” (i.e., sole custody by another name) the other parent will still be relegated to second-class, “loser” status, which is bad for kids. After all, what kid wants to have one of their parents designated as unfit to participate in decision-making? (Unless of course one parent really is unfit, but that’s the exception, not the rule.) Many divorcing parents want the trophy of sole custody – sorry, sole “decision-making responsibility” – but most of the time it’s a toxic trophy.

This winner/loser problem of sole custody was discussed in the Ontario Court of Appeal’s groundbreaking 2015 decision M v. F., where the court called it a “syndrome,” and noted that more than twenty years of social science research tells us: avoid it. The judge who wrote M. v. F., Justice Mary Lou Benotto, gave a speech to the Advocates’ Society in 1995. She warned about what she called “the winner-loser syndrome in custody cases.” She spoke about the “irreversible hurt” inflicted during custody proceedings, where we try to decide “which parent is better.” As Justice Benotto queried: “What could possibly touch one’s soul more?”

Make no mistake: custody (sorry again, “decision-making responsibility”) is a moral judgment. As the Supreme Court of Canada noted in the classic 1993 custody case Young v. Young, “a custody award can thus be regarded as a matter of whose decisions to prefer, as opposed to which decisions to prefer.” [emphasis in original] The Young case also gives a history of custody, noting that, back in the 1800s, custody always went to the father, because children were seen as his property. You couldn’t even contest it. As the famous 1804 English case R. v. De Manneville illustrates, under this regime a mother could be denied custody and even access to a child still breast-feeding, notwithstanding that the undisputed cause of the marriage breakdown was the cruelty of the father. Times have indeed changed, for the better. Let’s hope that if Bill C-78 passes, things will continue to get better.

For advice on family law and fertility law issues, contact Shirley Levitan.