Long-awaited amendments to the Divorce Act which are now before the Senate recognize how family life has changed over the years, say lawyers.
Long-awaited amendments to the Divorce Act which are now before the Senate recognize how family life has changed over the years, say lawyers.
Queen’s University professor Nicholas Bala says Bill C-78 includes the first significant change to the parenting provisions of the legislation since it came into effect in 1986. The enactment of Bill C-78 will help address some of the challenges facing the family justice system, separating parents and their children.
“I think it’s a good thing that it’s being done. One could say this is moving in the right direction but we need resources,” says Bala, adding that no additional funding is included, leaving new initiatives up to the provinces to finance.
The amendments see the words “custody” and “access” replaced with “parenting orders” and “contact orders.”
Bala says the origins of “custody” and “access” lie in property law, and place an emphasis on the protection of parental rights whereas the focus of Bill C-78 is the needs of children, and the responsibilities of parents rather than their rights.
The Department of Justice maintains in its legislative background of Bill C-78 to amend the Divorce Act that the best interests of the child continues to be the foundational principle. The changes would create a duty for parents to exercise their responsibilities for their children in a manner consistent with the best interests of the child, which includes equal shared parenting when appropriate, but doesn’t impose it as a presumption.
The bill also includes a list of factors to “help parents, family justice professionals and judges determine what is best for the child in a particular case.”
Brahm Siegel, a partner at Nathens, Siegel LLP in North York, says the new changes are a long time coming. He says many lawyers have long been aware that labelling one parent as custodian and the other as just the access parent have proprietary notions, so they’ve been using different language in agreements.
“We might say the parties have joint custody of the children and that means that they share in decision-making responsibility and then we don't use the term access,” he says.
“The changes basically get rid of the custody access label and move it to different wording . . . it's more healthy to talk of children as human beings instead of property.”
Bill C-78 also allows provisions that encourage resolution outside the courts through mediation, arbitration and negotiation through lawyers to lessen the impact exposure to conflict from the divorce process might have on the affected children. Currently, says Siegel, a judge can’t force people to mediate their disputes.
The downside is that while most courts have free mediation services, they are quite limited, he says. So, while judges may have access to another tool, he says he believes they will have to vet individual cases because not everyone will be able to afford mediation.
Another provision acknowledges the importance of taking into account the perspectives and preferences of children who are the subject of parental disputes by establishing an obligation on the court to make reasonable efforts to “ascertain” the views and preferences children, says Bala.
What isn’t included in the amendments, but can still be added by the Senate, is the presumption of equal parenting time as the default position in custody disputes, he adds.
Advocates, including men’s groups, want to see 50-50 split of parenting time as the starting point in every custody dispute.
Toronto family lawyer Gene Colman, principal of Colman, Gene C., Family Law Centre in Toronto, told the Standing Committee on Justice and Human Rights in November that while many lawyers don’t want to adopt rebuttable presumption for equal shared parenting, the public “overwhelmingly wants it” and it is supported by social science literature.
Disappointed that the approach hasn’t been included in the amendments, Colman continues to advocate for the presumption, presenting to the Association for Family and Conciliation Courts 56th International Conference in May, arguing it is better for the children and parents.
“Numerous polls demonstrate that public support for ESP (equal shared parenting) across Canada and indeed around the world is incredibly high,” he says. “The government did not see it that way as it did not even come close to amending the Divorce Act as I would have envisaged.”
But Bala finds the notion problematic and has outlined his concerns in submissions to the committee and the Senate, including a brief in March on behalf of the Ontario Chapter of the Association of Family and Conciliation Courts.
Bala points out that equal parenting time doesn’t exist in Canada as a presumption. He says the bill instead promotes a post-separation regime of sharing of parental time and decision-making, in a co-operative fashion that provides parents with as much time with their children as is consistent with the child’s best interests.
The result, he adds, is that there is a general understanding that the mother and the father are equal as parents.
Bala points to Australia which started going in the direction of including the presumption, but then retreated from that approach.
“To me the international experience is that there are real problems with the presumption of equal parenting time and . . . invites more litigation, particularly in situations where they may be high conflict or potential for domestic violence or potential or actual domestic violence,” he says.
