Divorce Act Amendment Pass Out of the Senate

Many of us in the negotiation and collaboration areas of practice have known for a long time that the terms “custody” and “access” can sound like winner and loser to some separating parents.  In May 2018, the federal government decided to propose changes to the Divorce Act that would eliminate these terms and embrace the concepts of parenting time and decision making responsibility.

On June 18, Bill C-78, that sets out these changes, passed out of the Senate without major amendments. This passage sets the stage for the Bill to become law in Canada. But the changes will not come into force until a future date.  Of course family courts administrators need time to revise court forms and rules, and educate the judiciary, lawyers and the public about these changes.

Bill C-78 also makes other significant changes to Canadian family law.  For the first time, the federal law will set out criteria for courts to consider when deciding the best interest of the child.  There are many criteria, and they include: each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse (s. 16 (3) (c)) and the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage (s. 16 (3) (f)).  The criteria also direct the judge to consider family violence and the impact of family violence on the child, the parent who has been subjected to violence, and the ability or appropriateness of the parents having to communicate for the purpose of parenting the child.

The Bill contains a comprehensive definition of family violence and directs the court to consider whether there is a pattern of coercive and controlling behaviour in relation to a family member.  These changes should be welcomed by dispute resolution professionals who work in the shadow of the law, because it strengthens the need for thorough screening for domestic violence prior to assisting clients to develop their parenting plans.  And the new law makes clear that violence in the family does have an impact on children, their parents and other family members, and needs to be addressed in any parenting plan.

Some additional significant changes are:

  • creating duties for parties and legal advisers to encourage the use of family dispute resolution processes which are stronger than the previous provisions;
  • introducing measures to assist the courts in addressing family violence through a restraining order;
  • establishing a framework for the relocation of a children where their parents are separated that requires notice. 

The Bill also makes consequential changes in other areas of family law to improve the federal legislation governing family support enforcement.

Provided by AnnMarie Predko, a Toronto Mediator at Round Table Mediation (https://roundtablemediation.ca). Anne Marie has started a new mediation practice after an executive career in government.

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