New family law amendments focus on rights of the child

The federal government introduced new family law legislation that introduces the first significant changes to the Divorce Act in 20 years and is more focused on the best interests of the child.

Bill C-78 passed first reading in the House of Commons on May 21. 

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.

“It’s a very child-focused bill, and so it should be,” says Philip Epstein, a senior partner in family law firm Epstein Cole LLP in Toronto. “The [family law] bar has long supported getting rid of the terms ‘custody’ and ‘access’ and has long been in favour of relocation guidelines.

“I think [the bill represents] a growing recognition that whenever the legislation being drafted is affecting children, it has to focus on the rights of children, not of parents,” Epstein says. 

“So, you set out the criteria for best interests of the child and make it clear that family violence is a significant factor in establishing best interests, as is friendly relations between parents.”

Bill C-78 is clear that family violence and its impact will be a key factor in determining the best interests of children. Under “Best Interests of the Child,” the bill sets out a list of factors to be considered by courts in custody disputes that include“(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.”

Absent consent, courts will now be required to make parenting orders, allocate parenting time and allocate decision-making responsibilities in areas of a child’s care and well-being such as health, education and extracurricular activities, Epstein says.

“Again, it’s very child focused, and tends to get away from win/lose” scenarios for the family, he adds.

Jonathan Richardson, a partner with Augustine Bater Binks LLP in Ottawa, says he’s pleased with the proposed changes.

“These changes will start to reflect the realities of parents seeking a divorce especially with respect to their children. The change in language from custody and access, which are often used interchangeably by parents despite having very different meanings, to parenting orders and parenting time will hopefully reduce confusion and remove some of the enmity from family proceedings,” he says. 

The bill also creates duties for parties and legal advisers to encourage the use of family dispute resolution processes, and it will give the court the power to order mediation, “but only in those provinces that now permit such orders, such as British Columbia” and not Ontario, says Epstein.

Richardson says he is in favour of a shift where the court “will now have the authority to order parties to attempt alternative dispute resolution proceedings.”

“It often seems as though parties in family proceedings litigate for the sake of a ‘win’ or will resume litigation if they did not ‘win’ the first time around,” says Richardson. 

“Moving some cases, and even high-conflict cases, into alternative dispute proceedings may encourage parties to co-operate and work together in the best interests of the children.”

What to do in the circumstances of proposed parental relocation has been a controversial issue, but the new guidelines will create a shifting onus, says Epstein.

“If you have primary care of the child, the onus is on the other parent” or the objector to give reasons for their objections to the proposed relocation. However, Epstein says, “If you have equal custody, the onus is on the person relocating” to justify the 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,” says Epstein. 

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, he notes.

Richardson says the bill contains “the creation of guidelines for mobility cases,” where one spouse wants to move away with the children from the jurisdiction they’re in. He says he’s hopeful the guidelines “will hopefully reduce the confusion and allow for clearer adjudication in these cases.”

The bill will next go to second reading and, assuming it is eventually passed by the House of Commons and the Senate, the amended legislation is expected to come into force in 2019.

— with files from Gabrielle Giroday