June 20, 2018
In May 2018, Justice Minister, Jody Wilson-Raybould introduced a Bill to amend the Divorce Act. This is the first set of amendments since the modernization of the Divorce Act in 1986. To be sure, the Child Support Guidelines and Tables were updated in the 1990’s but no new language, terms, or changes to the Act have been made since the Divorce Act was modernized in ’86.
The lack of updates has caused a disconnect between the terms of the Divorce Act and the application of the language in courts, mediations, negotiations and other dispute resolution processes. As family law resolution evolved over the decades, the language of the Act did not. The result was that modern families, with the help of divorce professionals, developed and implemented new language to fill the gaps. While this organic process was unfolding, the language of the Divorce Act fell further and further behind.
Statistically, 50% of marriages in Ontario will end in divorce. Divorce, unfortunately, is now commonplace and affects every member of the household. Divorce also often affects the wider circle of family members, joint service providers, and mutual friends.
The Federal Government, through the Minister of Justice, Jody Wilson-Raybould, introduced amendments focused on key objectives:
- Promote the best interest of the child
- Address family violence
- Help to reduce child poverty
- Make Canada’s family justice system more accessible and efficient
Known as Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, the Bill amends language and modernizes and clarifies terms.
In the weeks since the announcement, much has been written about the change in language from “custody and access” to “parenting” orders. The former language has been criticized as being hierarchical in nature, creating discord between parents who then cannot compromise on a post-separation parenting schedule or decision-making regime that they feel minimizes their parental status. The new amendments change this language to parenting orders decision making and parenting time. The language change in the Bill is helpful and will bring the Act into step with the language being used by most professionals. This amendment is a catch up to what is happening on the ground. Very helpful but not ground-breaking.
Of interest is that the best interest of the child test is now captured in the amendments. The amendments clearly reject a presumption of a shared custody starting point, in favour of the best interests of the child standard when adjudicating parenting issues. The important aspect is that the best interests of the child test provide a series of factors to guide courts and practitioners when crafting a parenting decision.
The amendments also address the tricky situations of relocation. This occurs when one parent seeks to move with the children to a different jurisdiction. This could be to a new area of the city, a new province, or a new country. These cases are high stakes cases, where the parent opposing the move stands to lose regular contact with the children. “Mobility cases”, as they are called, have resulted in a variety of decisions and are hard to predict. Without guiding factors, like the detailed ones provided for in the definition of the best interest of the child, practitioners and courts were left to craft their own criteria. This inevitably resulted in inconsistent decisions and made it difficult for counsel to reliably advise either parent on how to proceed. The new legislation mandates that the moving parent provide 60 days’ notice of the proposed relocation and if the other parent does not agree, the Act now provides more structure and guidance on assessing the best interests of the child in mobility cases.
An important addition to the legislation is a deeper engagement in the issue of family violence. Family violence is certainly of the most challenging situations that face divorce professionals, and the screening and need for awareness of partner violence is a key factor in the triage stage of family law files.
The proposed amendments include a new definition of “family violence” and, should it be found to exist, guidance in the development of a parenting plan and in court proceedings. Family violence is defined in the Bill and considers sexual abuse, harassment, financial abuse, and psychological abuse, and includes, with respect to a child, “the direct or indirect exposure to such conduct.” The proposed changes direct a court to consider the existence of any family violence as a factor in determining the type of decision-making and contact order to be made.
Further changes in the Bill include amendments to the enforcement of the payment of family support and encouraging families to use mediation instead of the court system. The Bill refers to family dispute processes including negotiation, mediation, and collaborative law. Under the Bill, the court can direct the parties to attend these alternative forms of resolution. It also requires any legal advisor to “encourage the person to attempt to resolve matters through the process unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.” This follows in the footsteps of section 9 of the current Divorce Act mandating legal professionals to canvass the possibility of reconciliation and, if such a possibility exists, to draw the client’s attention to resources that can aid in the process.
Many of these progressive changes will go a long way in bringing the Divorce Act into the reality of the modern family.
Kathryn Hendrikx practices exclusively in the area of Family Law. She received her B.A. and M.A. in Political Science and obtained her law degree from Osgoode Hall Law School. She is a member of the Women’s Law Association of Ontario and is on the Board of the Ontario Bar. She is a member of the Family Lawyers Association of Ontario and the AFCC.