Proposed changes to the federal Divorce Act will do away with these often-contentious terms, following the lead of legislation in several provinces:
Bill C-78 passed first reading in the House of Commons on Tuesday. It would eliminate terms such as “custody” and “access” and replace them with others such as “parenting orders” and “parenting time.” The bill would amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.
The legislation also includes relocation guidelines — when divorced parents want to relocate to another jurisdiction, at a remove from the other custodial parent — with a shifting onus depending on the child care arrangements pending the relocation; and, parents may be required to attend a family dispute resolution process.
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What to do in the circumstances of proposed parental relocation has been a controversial issue, but the new guidelines will create a shifting onus.
“If you have primary care of the child, the onus is on the other parent” or the objector, to give reasons for his or her objections to the proposed relocation. However, “if you have equal custody, the onus is on the person relocating,” Epstein says, to justify the relocation. The new legislation would essentially override the Supreme Court of Canada’s decision in Gordon v. Goertz, he says, “and places front-and-centre the reason for the proposed relocation.”
The bill does not promote joint parenting, however; “I think those who have been clamouring for family law reform for more than 20 years, particularly fathers’ rights groups, which argue for joint custody, are not going to see that in the bill.” Neither the government nor a fair majority of the family law bar support that, and in the United States, he adds, many jurisdictions that had moved toward a presumption of joint custody have since abandoned it.
I’ll have to see how these changes work in practice, but for now I’m with the lawyers quoted by CBC News, who say they’re cautiously optimistic. Hopefully this will go some way toward reducing conflict between the parties, and speed up what can be a slow and stressful court process.
Lawrence Pinsky, partner in the Winnipeg firm Taylor McCaffrey and chair of the Canadian Bar Association’s family law section, said the proposed changes represent a significant step forward.
Pinsky penned a letter to Wilson-Raybould in late December 2017 that outlined the concerns of the CBA’s family lawyers.
“They’re either addressed or there was a solid attempt made to address them,” said Pinsky. “It may be that if I had the pen and was writing the legislation, I might have done it slightly different in certain respects. But they did address many of the changes we called for and we’re pleased with … those changes overall.”
The proposed changes fall into six main areas:
- 1) Replace terms such as “custody” and “access” with words like “parenting orders” and “parenting time,” to make the language less adversarial.
- 2) Set out criteria that help define the best interests of the child.
- 3) Compel lawyers and paralegals to encourage clients to use family-dispute resolution services such as mediation instead of courts.
- 4) Give courts measures to address family violence.
- 5) Establish guidelines for when one parent wants to relocate with a child.
- 6) Make it easier for people to collect support payments.
Hilary Linton, a Toronto family lawyer now practising full time as a mediator and arbitrator, said the bill “is bringing divorce law in Canada up to speed with what’s already happening under provincial law.”
For example, Linton said, lawyers in Ontario have turned to the Children’s Law Reform Act for guidance on establishing the best interests of the child because the federal act doesn’t provide it.
“The Divorce Act has now become a very articulate and even eloquent piece of legislation that’s written for the people to whom it applies. I love it because it’s written in plain English, and it’s really — as mediators — codifying what we’ve been doing all along.”
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The act stopped short of establishing a presumption of equal shared parenting between parents, which — although more common than ever — is not established as a starting point. Fathers’ rights organizations like the Canadian Association for Equality say the bill doesn’t go far enough.
Brian Ludmer, a Toronto lawyer and spokesperson for CAFE, said establishing an assumption of equal shared parenting would alleviate the “divorce war” mentality that often pits parents against each other.
But Pinsky, of the Canadian Bar Association, said establishing that presumption is not appropriate in a system that centres on the needs of the child.
“We in the CBA say that you start in the position of the individual child, because there’s not a one-size-fits-all. Different children have different temperaments, and some can handle situations that other children can’t.
Damian J. Penny 