National Post (Latest Edition)

Changes to Divorce Act fall short

Federal bill’s amendments play ‘catch-up’

- Laurie H. Pawlitza Family Law Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto. lpawlitza@torkinmane­

Last week, Minister of Justice Jody Wilson Raybould introduced a bill to amend the Divorce Act and other pieces of federal family law legislatio­n in the House of Commons. The Ministry of Justice’s Charter Statement accompanyi­ng Bill C-78 announced the changes as ones that will “modernize” federal family law and “promote faster, more cost-effective and lasting solutions to family law disputes.”

While the aim of the bill is a lofty one, the federal government’s ability to address family law issues is limited through no fault of its own, making wholesale change to the family law system difficult.

The Divorce Act, for one, deals only with married couples and not those who live common law. In addition, because of the division of powers under the Canadian constituti­on, provinces have jurisdicti­on to deal with property issues between a separating couple — often a significan­t issue in family litigation. While the federal government can pass certain legislatio­n for separated married parents, including child and spousal support (as divorce is a federal matter), it is up to each province to decide how married and commonlaw spouses in that province will split their property. The provinces also decide how parenting, child and spousal support issues for common-law couples will be addressed.

Even with those limitation­s in mind, however, Bill C-78 could have done much more.

The bill’s amendments to the Divorce Act mainly play “catch up” to what is already happening with most separating couples in Canada.

The most important proposed changes do two things: First, they change much of the antiquated language in the current Act, including replacing the terms “custody” and “access” with “decision-making,” and a “contact order” for “parenting time”; and second, they take legal concepts already in provincial law or decided by judges in the case law, and codify them in the Act itself.

As an example of the latter, while the current Act requires that a court’s decisions about a child must be based on the “best interests of the child,” “best interests” is now defined in the bill. It has already been defined in most of the existing provincial legislatio­n for many years.

“Family violence” is also defined and includes 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. Court decisions have for years been informally taking into account this extended definition of family violence when applying the “best interests” test.

Mobility cases (involving a separated spouse who wants to move with a child) have plagued the courts for many years. C-78 will require a parent who intends to move (whether that parent is the decision-maker or if she or he simply has parenting time) to give 60 days’ notice of a relocation. If the parents do not agree on the proposed move, the bill sets out additional considerat­ions when deciding a child’s best interests. Provinces such as Nova Scotia already have such legislatio­n in place for unmarried couples. C-78 largely reflects the case law that has developed around the area.

While various provinces’ laws already do so, Bill C-78 also refers to a “family dispute process” — a “process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiatio­n, mediation and collaborat­ive law.” Under the bill, the court can direct the parties to attend such a process. It also requires any legal adviser to “encourage the person to attempt to resolve matters through that process unless the circumstan­ces of the case are of such a nature that it would clearly not be appropriat­e to do so.”

Legislatio­n has existed in many provinces allowing for such referrals from the court to mediation. Alternativ­e dispute resolution (ADR for short), simply reflects the way in which family law matters have been dealt with for many years.

Despite consultati­ons by the Minister of Justice with stakeholde­rs in family law, there are a number of continuing problems for separated parents not addressed in C-78. One such issue is the “40 per cent rule.”

The “40 per cent rule” is found in the Child Support Guidelines, and allows a parent who has 40 per cent or more of parenting time, to ask to reduce the amount of child support paid to the primary parent. Many commentato­rs say that the effect of the 40-per-cent rule expands the feminisati­on of poverty, because women continue to be primary caregivers and still bear the vast majority of the children’s expenses, but receive significan­tly less support.

Other easy “fixes” left out of the amendments include initializi­ng the names of divorcing couples and their children, which are otherwise publicly available in most provinces (including to the couples’ tech-savvy children).

Parents in high-conflict separation­s also remain unable to ask the court under the Divorce Act to appoint a parenting co-ordinator (PC). A PC can be tasked with mediating issues regarding children, but most importantl­y, also have jurisdicti­on to “break the tie” when the parents cannot agree.

It is unlikely that C-78 will meet its aspiration­al goal of promoting “faster, more costeffect­ive 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.

For these reasons, the changes to terminolog­y and the codificati­on of case law in C-78 will not likely have a significan­t effect on separating couples.

 ?? JUSTIN TANG / THE CANADIAN PRESS ?? Justice Minister Jody Wilson-Raybould rises during question period Tuesday. Wilson-Raybould’s Bill C-78 proposes changes to federal divorce law.
JUSTIN TANG / THE CANADIAN PRESS Justice Minister Jody Wilson-Raybould rises during question period Tuesday. Wilson-Raybould’s Bill C-78 proposes changes to federal divorce law.

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