The federal government is attempting to push separating parents away from drawn-out court battles harmful to children under changes to the Divorce Act that take effect Monday.
For the first time nationwide, divorcing spouses will be told they have a legal “duty” to use dispute resolution services other than courts, such as negotiation, collaborative law or mediation. But only “to the extent that it is appropriate to do so.”
Lawyers, too, will be required to encourage a resolution by means other than courts, to the extent appropriate. An explanatory note on the Justice Department website explains it may not be appropriate in cases of family violence or a power imbalance.
“Court should be seen as the last resort,” Winnipeg lawyer Lawrence Pinsky, a former chair of the Canadian Bar Association’s family-law section, said in an interview.
The law is “not just saying, ‘Hey, why not try mediation?’ What’s contemplated is an in-depth discussion to talk about advantages and disadvantages of each system.”
The new, but limited duty to try alternatives to court exemplifies the broader changes to the Divorce Act, in preserving flexibility while stressing children’s best interests.
The changes were delayed by the COVID-19 pandemic. The law was introduced three years ago in Parliament by then-justice minister Jody Wilson-Raybould, received royal assent two years ago, and was to have taken effect last July.
Among the other changes:
Custody and access: The new law drops these terms in favour of more neutral language describing parenting time and responsibilities. The terms “shift away from the winner and loser, where we say ‘you have custody and you don’t,’ ” and the access parent is “the parent you visit,” says Toronto lawyer Diana Isaac. The law does not impose a presumption of equal parenting time for divorcing spouses, but does say a parent’s willingness to support the other parent’s relationship with the child is a factor in assessing the child’s best interests. (The law also provides the first federal definition of those interests, with the primary consideration being safety, security and well-being.)
Relocation: For the first time, Ottawa is telling judges what to consider when the fraught issue of leaving a province or country is proposed. For instance, the reason for a move can be considered. Until now, the courts have been on their own in deciding children’s best interests when relocation is at issue. A 1996 Supreme Court ruling established that the reasons for a move could not be considered.
Grandparent rights: Non-spouses such as grandparents, siblings and others can seek a court order to have contact with a child. But first, they will need to ask a court’s permission to hear their request. The best interests of the child come first.
Family violence: The government has a wide definition that includes indirect violence – such as when a child sees that a parent is fearful of the other parent – as well as violence to pets and financial abuse. The worst form is said to be controlling and coercive violence. Violence is a consideration in determining a child’s best interests under the law. The Divorce Act was silent on this area until now.
Divorcing parents using courts to settle disputes have encountered myriad problems, including long delays and high costs. Rather than provide a quick resolution, the courts have tended to fuel more conflict, whose impact is inevitably felt by the children.
Shannon Beddoe, a Toronto lawyer, was critical of the obligation on divorcing spouses to find alternatives to court. She called that a “value judgment” that “fails to recognize the importance of our legal system being available to citizens who need it.” The new legal framework will not improve access to affordable justice, she said.
She would have liked to see a “triage” model in which a judge or master could ensure truly urgent cases are brought quickly to court, and divert other cases to less adversarial processes where possible.
“If the aim of the legislation is to try to shift away from the adversarial nature of many family law matters, then the legislation should be working to shorten or eliminate the delays between the start of family law proceedings and the first court attendance or hearing,” said Ms. Beddoe, a partner at McCarthy Hansen & Co. LLP, which publishes the Ontario Family Law Reporter.
“A whole lot can go wrong in this time, such as children going weeks without seeing a parent, or parents in financial need trying to make ends meet without a support order.”
Mr. Pinsky said that under the Divorce Act, courts could still implement triage and early intervention, as Ms. Beddoe proposes and as some courts in Canada have begun doing.
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