Family law experts have been pushing for changes to the clunky old Divorce Act for decades.
This week, Justice Minister Jody Wilson-Raybould tabled Bill C-78. Spanning 154 pages, it aims to bring the Act into the 21st century, putting the best interests of the child front and centre.
The new approach is “based entirely on the child’s own situation,” Wilson-Raybould told reporters Tuesday. It’s “not a one-size-fits-all approach.”
But will it work? Family law experts say yes.
“They did it. Wow. This is a very significant development!”
That was the email response that John-Paul Boyd fired off to Global News immediately after his first reading of the legislation. He’s the executive director of the Canadian Research Institute for Law and the Family, and one of many who have been pushing for change.
The big headline from C-78 is about a change of language – swapping out words such as “custody” and “access” in favour of “parenting orders” and “parenting time.”
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The language around custody “was so adversarial in the past, and really fomented a lot of conflict between parents,” Boyd said.
Lawyer and instructor at Carleton University Rebecca Bromwich said it’s too soon to know exactly what a change of language will mean in courtrooms and playrooms across the country.
“Will changing the legislative language immediately change everything? No, but I can hope it will be part of a cultural paradigm shift away from those high conflict divorces, which are not good for anyone,” Bromwich said.
Conservative justice critic Rob Nicholson is also unconvinced.
“Changing the wording custody and access in the Divorce Act, may or may not be an improvement, but at the end of the day, if this legislation improves the protection of children by making the system safer and better for them, then of course we will be supportive of that,” he said in a statement.
And Nicholson is aware the treatment of children in divorce proceedings is a significant issue. He remembers working on the amendments to the same Act while he was an MP on the justice committee in the mid-1980s.
While the government says the Act hasn’t been updated in 20 years, Boyd said it’s more like 35. The Divorce Act in its current form was first introduced in 1985, and Boyd said there have been no major overhauls since. The government’s reference to 20 years likely refers to changes to the child support system that were made in 1997.
While the Conservatives and New Democrats both say they will be taking a closer look at the bill going forward, NDP justice critic Murray Rankin is more convinced on the “custody” point.
“The language we use, inside or outside of legal proceedings, is absolutely critical and this long over-due move in terminology from custody and access to parenting time and responsibilities is an important step to ensuring that the best interest of the child is central to proceedings,” Rankin said.
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Rebecca Bromwich does believe simple words can have power.
“It removes from the equation … that sense of victory or defeat when a determination is made about where your child is going to live, and where they’re going to spend their time.”
She said it’s also a reflection of changing times – when Bromwich began practicing near the turn of the millennium, she said about 85 per cent of court cases saw sole custody awarded to the mother. Now there’s been a “significant shift away,” with many families having a shared custody arrangement.
“The research says that’s good,” Bromwich said. “That maximizing the contact with both parents is strongly in the best interests of the child.”
And focusing on the best interests of the child is a big goal of C-78. It has a whole new list of factors that courts need to consider – everything from a child’s relationship with grandparents to their cultural and religious heritage to their own views and preferences.
The bill also introduces a definition for family violence, and courts must take any relevant history into account.
Considering a child’s emotional well-being, in addition to the child’s financial needs, is something Senator Anne Cools has been championing for years.
She introduced a bill to amend the Divorce Act in 2015, which is still being analyzed by committee. Far more narrow than C-78, Bill S-202 aims to require parenting plans that look at the best interests of the child before a divorce is granted.
“There is nothing more important than safeguarding children, because they’re not capable of defending themselves, they cannot protect themselves. And it’s a very sad thing when those children are embroiled in terrible conflicts,” Cools said.
C-78 encourages the use of parenting plans and allows a judge to order one, but does not make them mandatory.
Senator Cools could not be reached for comment on the new bill this week.
Aside from focusing on a child’s best interests and changing language, C-78 proposes a number of other significant changes.
For the first time, it offers guidelines for how courts should respond to requests to relocate a child. Relocation is one of the most litigious areas of family law, and there isn’t a lot of case law available on the topic.
“It’s really difficult for lawyers to advise clients about whether they’re going be able to relocate, and it’s difficult to predict what the outcome’s going to be,” Bromwich said.
“By providing a framework, this legislation is going to give some more certainty,” she said. “I think that’s a very welcome change.”
Bromwich is less certain about how changes to child support collection will play out. C-78 gives the federal government more power to release income information through sealed court documents, in an effort to help provincial counterparts garnish salaries appropriately. The bill allows for more information, but provides no new enforcement tools.
“It’s still early days,” Bromwich said.
On the topic of provincial involvement, it’s important to note the Divorce Act only deals with divorces. Children of unmarried or common law parents are dealt with by the provinces. While British Columbia and Alberta have already modernized their acts, and dropped the use of “custody” language, there’s no guarantee other provinces will follow suit.
And finally, for the first time, Bill C-78 encourages parents to try other means of settling their disputes outside the courtroom, such as mediation.
“Frankly right now, the court system is overburdened in most provinces and parents face an extraordinary wait of several years at a time to get to trial,” Boyd said.
“With this bill, hopefully, parents will take the government up on the proposal that you should consider something other than court.”
“I think that this bill is a boon for parents, judges and lawyers alike,” Boyd said.
“It will assist. It’s what has been asked for,” Wilson-Raybould said of the bill as a whole.
“But ultimately, every case, whether it’s resolved in court or in an out-of-court process, will have to consider the individual circumstances and the best interest of the child or children.”