Last year, headlines were made when the federal government announced an overhaul to the federal Divorce Act.
Last year, headlines were made when the federal government announced an overhaul to the federal Divorce Act.
Now, as the House of Commons debates Bill C-78, Ontario family lawyers say that, while there are some beneficial changes, such as the way in which custody disputes will be handled, more clarity is needed around provisions such as mobility of parents and alternative dispute resolution for separating couples.
Ron Shulman, founder of Shulman Law Firm PC in Toronto, says that, overall, the modernization of the act is long overdue and the changes are well intentioned.
“It introduces the concepts of parenting time, decision-making responsibility and contact instead of the old language of custody and access,” he says.
Shulman says there is a proposed change of language in the act, which modernizes the legislation in terms of how people currently talk about concepts around parenting after divorce and creates an atmosphere that is less combative.
He is also pleased by the introduction of contact orders, which allow for non-spouses such as grandparents to have time with children and is differentiated in the legislation from parenting time.
“That’s a recognition that [these non-spouses] have an interest in the children’s upbringing, and that type of contact is in the best interest of the child much of the time, so it creates jurisdiction and legislative structure for those kinds of applications,” says Shulman.
Nathalie Boutet of Boutet Family Law & Mediation in Toronto, who does collaborative law work, says that, while the proposed new language on parenting in the act is welcomed, there will be a period of adjustment with provincial legislation, such as the Children’s Law Reform Act, that uses older terminology.
“Provincial legislation has their own definition of best interests [of the child] and what to do when there is past conduct that will affect parenting,” says Boutet.
“The Divorce Act language is much better than the Ontario legislation in the domestic violence section, because it uses terminology like ‘coercive control,’ and that’s the language that is most up to date.”
Boutet also says that proposed provisions in the act around sharing information about income with provincial agencies are “wonderful” and will have an impact on non-court processes involving issues such as support obligations.
“If someone [involved in a divorce] is refusing to provide their income, the person on the receiving end [of support] can say, ‘All I have to do is start a court case and I will have access to your income information,’ so it feels like that will facilitate negotiation,” says Boutet.
Shulman also says the proposed introduction of parenting plans between divorcing couples in the bill are positive.
“The new amended proposed bill does not require a parenting plan from the parties, but [it] directs the court to specifically consider the plan, which reinforces the message for the parents to work together to put forward a plan,” says Shulman.
The bill also looks to make changes around mobility and relocation of parents, which includes an obligation for parents to disclose to each other the intention to relocate with sufficient advance notice if they share a child.
While Boutet hopes that the mechanism will help to facilitate communication to help come up with an alternative arrangement if there are objections to the relocation, Shulman has concerns about the language in this section of the bill.
“One of the areas that was lacking in the current act is a structure for mobility, and it forced people to litigate over it,” says Shulman.
“While [the bill] creates a structure, one of the areas which does concern me is in [the] area of the reverse onus. Once people give notice of their intent to relocate, it creates a structure so that anyone who intends to object can create a formal response.”
Shulman says that when the parent who has the child or children for the “vast majority of the time” wishes to relocate, it puts the onus on the other parent to say why that relocation would not be in the best interest of the child.
“There is no definition in the act about what it means for the ‘vast majority of the time,’” says Shulman.
“There is a distinction made [in] the act between decision-making responsibility and parenting time, so one could see that [in some cases] decision-making authority could rest with one parent who does not have [the child] the vast majority of the time.”
Shulman says that lack of definition of “vast majority of the time” could open up litigation.
Boutet says the introduction of new administrative steps in the legislation can mean divorced spouses could avoid courts when it comes to making variances of support orders.
“It’s a very welcome addition, because for a lot of people who have gone through it the first time, they’re exhausted,” says Boutet.
“Not everyone wants to go back and do it again, but if they have an administrator or a step between the court order and a variation that is easier and cheaper, I believe more people will access that.”
Boutet says that, while the current act forces lawyers to ask clients to try to reconcile or alert them to mediation, one of the biggest changes for her is the fact that the bill adds collaborative law as an alternative dispute resolution mechanism.
“I’m part of the collaborative community, and we have very successfully resolved disputes out of court, but a lot of people don’t know about this or think that it’s not a regulated process,” says Boutet.
“This brings it up to a level of national conversation.”
Christopher Arnold, a sole practitioner in Ottawa who also does collaborative law work, says the addition of collaborative processes to the bill is insufficient.
He says he would have hoped for an overt and state-sanctioned and resourced attempt to get people to work out their issues with assistance before they resort to the courts.
“To pay passing lip service to the idea that maybe you should work things out while the case grinds on, while people become more embittered — it’s often too late once you’ve filed your application [for divorce],” says Arnold.
“And yet the mechanisms in the Divorce Act to work out their issues — that switch is only turned on once [they’ve] filed their papers.”
Arnold says he would like to see a system put in place more like Australia’s, where a network of community-based centres under the banner of Relationships Australia is the first point of contact for couples who separate.
“Their system is essentially recognizing that [the courts] are a tiny fraction of actual separating or divorcing people, and they should have to go to a family dispute resolution first and fail and get a failure ticket,” says Arnold.
“That failure ticket is the ticket into the courthouse.”
Arnold says such a system would save a lot of money.
“There’s a cheaper, better, faster way to do it, which is to properly resource family dispute resolution at the outset and force people to do that,” says Arnold.
“The cost to social services that [are] impacted by separation and divorce are usually underestimated by people. If people transition badly in and out of relationships, the social cost is enormous.”
