Selected Commentary on Divorce Act Changes
With the passage of Bill C-78, the federal government seems to have achieved the goal that all governments strive for – pleasing most interest groups and alienating none. Governments can often be reluctant to wade into family law, because it is an area of law that is perceived, rightly or wrongly, to be a political ticking bomb, because some of the most vocal family law stakeholders can be divided along gender lines – intimate partner violence advocates on one hand and dads’ rights advocates on the other. These groups are vocal and engaged so federal governments from all parties have steered clear of family law reform for the past 20 years.
But family law has a profound impact on society and individual adults and children, and there have been many developments in our understanding of relationship breakdown in that time frame. And many provinces have made changes to their provincial laws to reflect these changes – recognizing the property rights of unmarried partners, reflecting the need for courts to consider intimate partner violence in custody and access decisions, and expanding and recognizing the many ways that Canadians can become parents.
From a policy perspective the most important changes to the Divorce Act are:
- Changing the language of parenting from custody and access to parenting time and decision-making authority. Those who are not parents can apply for contact with the child;
- Adding criteria to help determine the child’s best interest, including considering the views and preferences of the child, in accordance with their age and development;
- Addressing intimate partner violence (called family violence in the DA, which is defined) and the impact it can have on the best interests of a child. The description of family violence is nuanced and makes reference to coercive and controlling behaviour, which practitioners know is the type of violence linked to lethality;
- Encouraging the use of alternative dispute resolution for all family disputes;
- Recognizing the need for children to be involved with both parents, if it’s in their best interests, and obligating parents to support that involvement;
- Establishing a framework concerning relocation of a child;
- Explicitly permitting grandparents and other relatives to apply for contact with the child; and
- Allowing recalculation of federal child support orders by provincial authorities.
Some selected comments from public postings and committee submissions include:
Changes …. appear to be in line with CBA advocacy include an emphasis on dispute resolution and early intervention to avoid litigation and court time, more administrative remedies for simpler access to justice, measures to assist unrepresented litigants, and measures that better address situations of family violence. – Canadian Bar Association Commentary upon introduction May 2018
Bill C-78 as passed into law does not contain every revision proposed by women’s equality/violence against women advocates. Nonetheless, the new Divorce Act will offer women fleeing abuse greater protection than that offered by the present law. – Pam Cross, feminist lawyer and well-known expert on violence against women
It is unlikely that C-78 will meet its aspirational goal of promoting “faster, more cost-effective and lasting solutions to family law disputes.” The reasons are disparate, and range from the problems created by Canada’s constitutional division of powers, to the difficulty a parent sometimes has in making sound decisions when reeling from a separation. – Laurie H. Pawlitza senior partner in the family law group at Torkin Manes LLP in Toronto in the Financial Times May 30, 2018
Many lawyers don’t want to adopt a rebuttable presumption for equal shared parenting, the public “overwhelmingly wants it” and it is supported by social science literature and it is better for the children and parents. – Gene Colman, principal of Colman, Gene C., Family Law Centre in Toronto in 2019
Anne Marie Predko LLB FDRP Med. AccFMis a Toronto Mediator at Round Table Mediation (https://roundtablemediation.ca). Anne Marie has started a new mediation practice after a career as a family law lawyer and a government administrator of family court connected services and administrative tribunals.