Panel applauds Divorce Act changes that highlight mediation, best interests of child

Published by The Lawyer’s Daily on Tuesday, December 10, 2019.

Family justice experts at the fifth annual Family Dispute Resolution Institute of Ontario (FDRIO) Conference lauded amendments to the Divorce Act, which they say signal a “cultural shift” in best interest of the child duties as well as an emphasis on mediation.

“The Divorce Act: How will the changes impact FDR?” panel, held on Nov. 18, included Dr. Rachel Birnbaum, of King’s University College at the University of Western Ontario; Nicholas Bala, a professor at Queen’s University; Claire Farid, counsel for the Family Law Policy Unit of the Family, Children and Youth Section of the Department of Justice; and was moderated by Lorne Wolfson. 

Farid noted that the Act, which hasn’t received substantial amendments since 1985, is focused on “promoting children’s interests, addressing family violence, reducing poverty and improving the effectiveness and accessibility of the family justice system in Canada.”

She stressed that while Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, has received royal assent and is now law, many of the amendments don’t come into effect until July 1, 2020.

Farid explained that there are “three explicit mentions of family dispute resolution” in the Act. The first being the “new duty that parents have to try and resolve their disputes through family dispute resolution.”

“Legal practitioners also have a new duty and that is to encourage their clients to use family dispute resolution unless it would be clearly inappropriate given the facts of the case,” she said, adding the third instance is a “new duty on courts to refer families to family dispute resolution subject to provincial law.”

She also noted that there are many aspects to the amendments that don’t “specifically refer to family dispute resolution,” but are “key in terms of encouraging its use.”

One example she gave was the change in terminology of “custody and access” to a court making “parenting orders.”

“Under those parenting orders the court will allocate decision-making responsibilities, which are now roughly equivalent to what we would talk about as ‘legal custody’ and ‘parenting time,’” she said, stressing that “parenting time” and “access” are two different concepts.

“The other thing that I think is particularly important,” she added, “is the fact that the Divorce Act amendments specifically make reference to the concept of parenting plans. Parenting plans are not mandatory, but they are specifically highlighted and if parents submit a parenting plan (an agreement on matters relating to parenting or contact), the court has an obligation to include those elements of the parenting plan in the parenting order, unless the court determines that they’re not in the best interest of the child.”

Farid highlighted that the amendments “enhance” the best interests of the child by including a “new list of best interest criteria.” She said the list is important from an access-to-justice perspective for those who are self-represented.

“There are number of best-interest criteria, but one I specifically wanted to focus on here is the child’s views and preferences. I think it’s important to think about in the family dispute resolution context how those views and preferences of the child can be incorporated into the FDR process. Whether that’s the mediator speaking to the child and then bringing those views back to the mediation context or otherwise. I think it’s something that we need to start thinking about,” she explained.

Farid also noted that the amendments do not “contain any presumptions about what is in the best interest of the child.”

“This is intended to be an individualized analysis based on the particular facts of the child’s case. I just want to emphasize there is no presumption of equal shared parenting,” she added.

Birnbaum noted that there’s a “real emphasis” now on encouraging parents to consider their parenting obligations.

“I’m very pleased to see, front and centre, children’s views and preferences. While every province obtains children’s views and preferences in parenting disputes, there are many different forms. Some are a parenting assessment, whether it’s views of the child reports, whether it’s a judicial interview, whether it’s through child inclusive mediation. There are many different ways we can now get a child’s views [and] preferences before the court,” she said.

Birnbaum also highlighted the Act’s acknowledgement that not all families can go through mediation or parenting coordination.

“There will be some families,” she said, “where the family violence is so severe, a coercive, controlling kind, that it is not appropriate. It’s not even appropriate for shuttle mediation in those particular situations. Or where there’s extreme mental illness with one or the other parent, it would not be appropriate because the parent doesn’t have the ability to focus on the interests of their children. Or where there is substance abuse, whether that’s through drugs or alcohol as well. I think those are really important issues, and again, all based front and centre, which I was very pleased to see in the Act.”

Bala emphasized that under the Act, legal practitioners now have a duty to encourage family dispute resolution.

“The message here is you’re really going to have to steer clients [towards FDR] unless it’s clearly not appropriate to do that,” he said, adding that another duty is to inform clients of the various services available.  

“There’s a positive obligation on lawyers, and I think most lawyers are aware of this already, to know about the resources available in their community, and also on the Internet, to help provide advice and assistance about going through the process in Ontario, the mediation services that we have,” he explained.

“And then the third, and in some ways the most important and complex, is informing clients about the client’s duties under the Act. So, informing parents about the need to act in their children’s best interest, to inform parents about the need to reduce conflict. This, to me, is a real cultural shift in the role of lawyers. It is going to require lawyers, in some ways, to be parenting coaches,” he said.

LexisNexis Canada, publisher of The Lawyer’s Daily, was a sponsor of the fifth annual Family Dispute Resolution Institute of Ontario Conference.

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