Proposed updates to the Divorce Act which the Liberal Government tabled bill C-78 Tuesday May 22, 2018, which if passed will update federal divorce laws for 1st time in 20 years.
The amendments proposed by the federal Liberals in Bill C-78 could help parents avoid lengthy drawn-out and expensive court battles. The bill emphasizes a less adversarial processes and puts the best interests of the children at the front and center, even when one party seems determined to escalate matters.
The bill was introduced in the House of Commons by Justice Minister Jody Wilson-Raybould. The hope is that with children’s voices being paramount and knowing they have say will give a parent or parents room to pause and may even stop them in their tracks from escalating matters. Certainly the proposed changes represent a significant step in the right direction.
I have practiced in the area of custody and access for over 20 years and I have done so with taking into consideration children’s voices by way of the Voice of the Child Reports or by way of meeting the children and bringing in their voices during mediation with the parents. Generally, parents are quite moved and are able to make significant changes, which they otherwise may not have, in order to honour their children’s views and preferences. I may at times even include the children’s voices when providing parenting coordination which is secondary mediation/arbitration when a parenting plan is already in place.
Bill C-78 has proposed changes which 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.
Aligning with provincial law
Hilary Linton, a close colleague of mine and a Toronto family lawyer, who has a well established practice of mediation and arbitration, 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.”
Linton said she believes the most progressive parts of the bill are the changes related to family violence, which give clear guidance to legal professionals by providing detailed factors to take into account when establishing a parenting plan.
These include definitions of family violence that go beyond just physical abuse, to include emotional and sexual violence as well, she said.
The federal government’s legislation proposes replacing terms like ‘custody’ and ‘access’ with ‘parenting orders’ and ‘parenting time.’
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.