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The period between March 2020 and March 2021 will likely be recognized as the year of many changes in the family justice system. Those working with families in the context of separation and divorce will no doubt remember it as the year Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachments and Pension Diversion Act and to make consequential amendments to another Act, 2019, c. 16 came into force. It may also be known as the winner of the longest name ever given to a Parliamentary Bill in Canadian history.  At least for me this is how it felt when I tried to read it in its entirety in one single breath.

 

Effective March 1, 2021, most of the amendments to the Divorce Act came into force including new Family Law Rules Forms in Ontario and new duties for the judiciary, parents and lawyers. This article is a very brief summary of the changes that will likely have the most significant impact on Family Dispute Resolution Practitioners (“FDRPs”) across Canada. With the permission of our esteemed colleague, Professor Nicholas Bala, Faculty of Law, Queen’s University, we also include a copy of Professor Bala’s Powerpoint presentation from this year’s Family Law Summit entitled: The 2021 Amendments to the Divorce Act and the CLRA: Revolution or Evolution? This resource along with many others penned and presented by Professor Bala provide additional details and analysis with respect to the amendments and some key insights from one of our most well respected Canadian legal scholars. I highly encourage you to peruse through this document and keep an eye out for emerging caselaw, which will be certain to add to the ongoing discussion.

 

Terminology

 To their credit, FDRPs have been using most of the child-focused language that was introduced by Bill C-78 for many years. The following are the main changes to parenting terminology:

Old New
Custody
  • Decision-Making Responsibility (significant decisions re well-being – sole, joint or divided)
  • Parenting Time (schedule or parenting order and day-to-day decisions)
Access (spouse) Parenting Time (schedule or parenting order and day-to-day decisions)
Access (non-spouse) Contact (e.g. grandparents – leave is required)

 

Duties 

As a result of the amendments to the Divorce Act, several duties have been created or updated for the court, parties and legal advisers in a proceeding under the Act.

Who? Duties
Court (e.g. judges)
  • Identify and consider other conflicting orders such as
    – Civil protection order
    – Child protection order
    – Criminal proceeding/undertaking/recognizance
  • Coordination of proceedings
Parties to the Proceedings (e.g. parents)
  • Exercise time, responsibility or contact in the best interests of the child
  • To the best of their ability, protect children from conflict arising from the proceeding
  • Where appropriate, try to resolve issues through a family dispute resolution process
  • Provide complete, accurate and up-to-date information if required to do so
  • Comply with orders until no longer in effect
  • Certify at the commencement of a proceeding that they are aware of their duties
Legal Adviser (e.g. lawyers)
  • Discuss the possibility of reconciliation with parties, including marriage counselling or guidance facilities (if known), if appropriate
  • Encourage parties to attempt to resolve matters through a family dispute resolution process, if appropriate
  • Inform the parties about available family justice services (if known)
  • Inform the parties of their duties under the Act

 

New Official Languages Provision

As a Francophone and a bilingual practitioner, these official language amendments to the Divorce Act marked an important milestone for those who wish to proceed under the Act in either official language regardless of jurisdiction. This includes the right of a party to use either official language to:

  1. file pleadings or other documents;
  2. give evidence;
  3. make submissions;
  4. be provided with simultaneous interpretation;
  5. request a judge who speaks the same official language or both official languages;
  6. request a transcript or recording;
  7. receive any judgment or order in that party’s official language of choice.

 

What does this mean for FDRPs?

The modernization of the Divorce Act shifts the focus from court to out-of-court resolution of disputes. To the members of our FDRP community, this is a long-awaited shift in the family justice system. The incorporation of “Family Dispute Resolution Process”, defined in the Act as:

“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”

now requires parties to try to resolve their family law issues through family dispute resolution, if appropriate.

 

This brings us to the discussion surrounding the circumstances where negotiation, mediation or collaborative law may not be appropriate. For instance, in cases where the parties are high conflict, there are power imbalances or family violence issues. This highlights the vital role played by the screening process, which as FDRPs we are well versed in its value and critical role in designing a dispute resolution process that is safe for all parties, including the FDRP.

 

As illustrated at paragraphs 27 and 28 of a recent decision issued by Mandhane J. in Smith v. Smith, 2021 ONSC 2137, conducting child-inclusive processes and considering the impacts of family violence on children must be considered when determining the best interests of the child:

“27. A human rights-based approach to the new Divorce Act calls on courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny.

28.In practice, it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall well-being. The “family violence” provisions in the amended legislation, in particular, empower courts to protect children from unique forms of violence that can have devastating lifelong impacts.”

 

The other important discussion that must be had in the context of the new Divorce Act stems from the notion of what used to be known as the maximum contact principle. Mandhane J. explains it quite clearly at paragraph 48 of the Smith decision as follows:

“48. ‘Maximal contact’ is no longer enumerated as a factor in s.16(3) in the new Divorce Act. Instead, the legislation states in s.16(6) that: ‘in allocating parenting time, the court shall 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’.”

 

Furthermore, this was also discussed in the decision of Jain J. in Pereira v. Ramos, 2021 ONSC 1737, also released after the new Divorce Act came into force. In this case, Jain J. states at paragraph 13 that:

“[13]    Under the Act, a parenting order would be available to either or both spouses; or 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.  Parenting time may be allocated by way of a schedule and unless the court orders otherwise, the parent who has been allocated parenting time has exclusive authority to make the day-to-day decisions affecting the child when the child in in their care.  This would include time when the child is not physically in the care of that person, such as when the child is at school or in daycare.  If there is a particular issue that would normally be a day-to-day decision, but it is of certain significance to a particular child, it could provide for any other matter that the court considers appropriate. The amendments preserved the principle that a child should spend as much time with each parent so long as it is consistent with the best interests of the child.  The “maximum contact principle” is now the “maximum parenting time” principle.  It is important to note that above all else, this principle is subject to the “primary consideration” that the court must consider a child’s physical, emotional and psychological safety, security and well-being.  This is especially significant in cases of family violence.  Lastly, none of the above creates a presumption of equal time because if the contact conflicts with the best interests of the child, the court may impose restrictions.”

 

This is key because of the long-standing debate amongst family justice stakeholders as to whether the Divorce Act and ultimately the courts were promoting “equal parenting” as the presumptive norm. Many Canadian legal scholars and other professionals involved in the modernization of the Divorce Act have commented and explained since Bill C-78’s Royal Assent that there is no such presumption of “equal parenting” under the Act. Rather, it is the best interests of the child test that must be followed in every case. This is an especially important distinction that all FDRPs must be aware of in their current practice.

As you can see, there have been significant changes to the Divorce Act, that will have an impact and play a key role in how FDRPs offer services and conduct themselves going forward. It is necessary to reiterate the critical role of screening in each of your processes and when in doubt, seek out the services of our colleagues who have the expertise and experience with screening in order to identify, assess and manage power imbalances and risk in family dispute resolution processes.