Recently, the Government of Canada has introduced Bill C-78 to amend the Divorce Act, which will be the most significant change to that Act in over 20 years. Some of the changes are welcomed by the Family Bar, while others might just be window dressings (with little or no real impact).
The changes that will have the most impact on the Family Bar (and divorcing parties) include:
changes in terminology for "custody" and "access";
codification of some of the “best interest of the child” factors, and a new / expanded definition of “family violence”; and
emphasizing the alternatives to court to resolve family disputes.
(There are other changes, such as simplifying enforcing support orders, clarifying the relocation of children, and adding the requirement to have a “Parenting Plan”, but these will not be discussed in this blog.)
1. Changes in Terminology
The proposed amendments to the Divorce Act, changes "Custody Orders" to "Parenting Orders" (which includes "parenting time" and "decision-making responsibility"), and the old "Access Orders" will now be "Contact Orders". Words have power; Custody is an archaic term that can evoke strong emotional reactions in some parents. Even "access" sounds strange -- a parent will have "access" to their child just sounds institutional. Changing the key terminology in family law has really hit the nail on the head; A parenting order evokes parental decision making and not custodial duties. Similarly, when a parent is spending time with their child, they will be having contact with them, which is arguably a more compassionate term and is sensitive to the raw emotions that parties often have when separating.
Current Legislation:
Custody: includes care, upbringing and any other incident of custody.
Custody Order: A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
No definition of "Access".
Proposed Changes:
Parenting Order: A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by (a) either or both spouses; or (b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent;
Content of a Parenting Order: The court may, in the order,
(a) allocate parenting time;
(b) allocate decision-making responsibility;
(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(d) provide for any other matter that the court considers appropriate.
Parenting Time: parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1) (i.e., a Parenting Order), whether or not the child is physically with that person during that entire time.
Decision-making responsibility: means the responsibility for making significant decisions about a child’s well-being, including in respect of (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities.
Contact Order: A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.
Contents of Contact Order: The court may, in the contact order,
(a) provide for contact between the applicant and the child in the form of visits or by any means of communication; and
(b) provide for any other matter that the court considers appropriate.
Custody has long been a poorly understood concept. Often clients ask for "50 / 50 custody", but they really mean 50 / 50 parenting time with their children. Custody, on the other hand, has always meant "decision making" which includes major decisions concerning a child's health, education, name, religion, and extra-curricular activities. Custody could be sole (i.e., one parent makes all the decisions), joint (i..e, where both parents make all decision together), or split (i.e., the categories of decisions can be divided between the parents, for example: parent #1 makes health and education decisions, and parent #2 makes religion and extra-curricular activities decisions). The same is included in the proposed changes to the Divorce Act under "Allocation of decision-making responsibility": Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, [...] or to any combination of those persons. (section 16.3)
While other provinces already use similar language (e.g. in Alberta, "custody" is called "guardianship" and a custody order is called a "parenting order", and access is called "contact"), and while some members of the Family Bar of Ontario currently use similar language in separation agreements, the majority of provinces in Canada still use "custody" and "access". Even with this proposed change to the Divorce Act, provincial legislation here in Ontario, such as the Family Law Act, the Children's Law Reform Act, and the Child, Youth and Family Services Act, each currently use "custody" and "access." People have grown accustomed to these terms, and so have industries that interact with parents and children -- schools and hospitals are two important examples. As recently as December 2017, a Judge ordered (on an interim basis) that my client can "make all necessary decisions regarding the child's health, education and activities." However, the Children's Hospital of Eastern Ontario (CHEO) said that wasn't good enough and that they needed the order to say "custody". Thus, while updating the Federal terminology is important, provincial legislatures will likely have to update their terminology.
2. Codification of the "Best Interest of the Child" factors
The proposed changes to the Divorce Act provides three key sections that relate to the "best interest of the child" consideration that has always been paramount in family court proceedings.
First, the proposed amendment clarifies that when considering the enumerated factors in the legislation related to the best interest of the child, "the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being". While this may seem self-evidence, it is important to remind both the public and the Family Bar, that at the core of every custody/access dispute, the parties, the legal practitioners, and the court must be hyper vigilant in ensuring the children's safety and well-being.
Second, the proposed amendment adds a non-exhaustive list of factors for the "best interest of the child". In Ontario, the Children's Law Reform Act already codified some of the factors of the best interest of the child. In fact, the proposed changes to the Divorce Act adopts these factors, and adds a few notable additions. One in particular that is beginning to capture the attention of the media and the Family Bar is the child's cultural heritage (including their indigenous upbringing, if applicable).
Below is a chart that shows the similarities in the current Ontario legislation and the proposed amendments to the Divorce Act:
Interestingly enough, many of the "newish" factors, were factors that Courts had to consider when deciding if the case was suitable for joint custody (i.e., the ability of the parents to communicate cooperatively with each other on matters affecting the child), but it was not so clearly stated in the Ontario legislation. At best, it asked the court to consider if the person applying could "act as a parent".
Third, the amendments clarifies and expands the definition of what constitutes "family violence". Looking at recent or historical incidents of violence in determining what is in the best interest of the child is nothing new. The Ontario legislation permits the court to consider violence against a spouse, parent, child, or other member of the family household. Bill C-78, however, expands this list to include:
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property
What is interesting, at least for me, is seeing "financial abuse" figuring so prominently, as well as the two clauses relating to threatening to kill/harm an animal (e.g. a family pet) and the actual killing or harming of animals. These additions are, in my opinion, very welcomed additions to the concept of family violence. If a person cannot be kind to a pet, what does that say about the same person's ability to parent?
3. Duty to Encourage Alternate Dispute Resolutions (ADR)
The last point about the proposed changes to the Divorce Act, is the emphasis is places not only on lawyers but also self-represented parties, to try out-of-court solutions to their family disputes.
Current Legislation:
Current legislation requires a lawyer to sign a certificate on the Application form that says "I certify that I have complied with the requirements of section 9 of the Divorce Act".
Section 9 of the current Divorce Act states:
9(1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation,
unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
9 (2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.
Proposed Changes:
For the Parties:
7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.
For the Lawyers:
Reconciliation
7.7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.
Duty to discuss and inform
7.7 (2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act
(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;
(b) to inform the person of the family justice services known to the legal adviser that might assist the person
(i) in resolving the matters that may be the subject of an order under this Act, and
(ii) in complying with any order or decision made under this Act; and
(c) to inform the person of their duties under this Act.
The changes are not that substantive; lawyers will continue to recommend counselling (if appropriate), and "family dispute resolution processes", but the reality is, it takes two to participate in counselling or ADR, but only takes one to run to court and file a divorce application. There is noting in the proposed legislation that gives these "duties" any teeth; There appears to be no consequences if a lawyer tells their client "you could try ADR, but if you really want results, we should start a court application". As such, I don't see the proposed amendments being a catalyst for any real change. The legal system and our courts will continue to be clogged with cases, many of which should be settled outside of court.
Some of my colleagues have suggested adding a requirement that you bring a "certificated of failed Mediation" to the court in order to be allowed to start a court application. While this sounds appealing at first (and might work for a large number of cases), there is an "access to justice" issue, where the cost of mediation could be prohibitive for some parties. As with court fees, there could be a mediation fee waiver, or there should be more legal aid funded mediation made available for those parties before allowing them to issue a court application.
Missed Opportunity?
Given the number of changes being proposed, there are some groups (especially fathers' rights groups) that were hoping for a presumption of equal parenting time. The transition from an intact family to a separated family is never easy, and many parents (and unfortunately, often fathers) go from seeing their kids every day to every other weekend. The general rule has never been - as a default starting position - equal parenting time. It has been, and continues to be, what is in the best interest of the child.
"Maximum parenting time" as defined in the proposed changes, requires the Court to "give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child". If it is the child's best interest to have equal time with both parents, then that is what the court should order. But if it is in the best interest of the child to only spend weekends with one parent, then that should be ordered. It is difficult for many parents/clients to understand this, but the final decision (whether it is in a court order or an agreement) should be in the child's best interest -- even if it is not the amount of time the parent would like.
Personally, I have often thought, if there is no evidence of family violence, mental health problems, or substance abuse, the presumption should be joint custody and equal parenting, and the burden should be on the party wishing to deviate from that presumption to convince the court. However, I appreciate the fact that in many families, there is a "bread winner", who unfortunately only gets to spend a few hours in the evening and their weekends with their children, while the stay-at-home spouse does the majority of "parenting". Thus, in such cases, where the children are accustom to seeing one parent every day, and having quality time with the other parent more sporadically, it could be argued that the post-separation parenting schedule should try to continue the same routine. But on the other hand, equal parenting time could be critical in strengthening the bonds between the "bread winner" parent and his/her children.
While these are just proposed changes, the Bill only has to go through one more reading in the Senate. Given the majority government at present, Bill C-78 will likely pass and become law. For that reason, parents and lawyers ought to familiarize themselves with the upcoming changes.