Why Ottawa’s changes to the Divorce Act don’t go far enough

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 common-law 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 advisor 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 feminization 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 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.

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.

Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.

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