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Putting Children First: Proposed Changes to the Divorce Act

July 6, 2018

In May 2018 the Canadian Justice Minister, Jody Wilson-Raybould tabled Bill C-78, which seeks to vary the Federal Divorce Act with the aim of putting the best interests of the children first. The Divorce Act is the governing legislation for parties ending their marriage and has not had any significant changes since it was drafted in 1985. Over the past 20 years the family law bar has seen a shift in parenting roles and it is important that the legislation adapt to reflect this.

One of the proposed changes is to remove the language of “custody” and “access” and replace them with “parenting orders” and “parenting time”.  The intention of the change of this language by law makers is to end the combative positions that party often take in fighting for custody and access as these terms seemingly produce a winner and loser with respect to where children are going to reside and who is going to spend what amount of time with them. The change in the wording will hopefully result in a shift away from high conflict divorces, which are rarely in the best interests of the children.

Though the proposed Bill deals with other changes, such as defining family violence, establishing a framework for the relocation of a child, and making Canada’s family justice system more accessible and efficient, the prime aspiration is to ensure that the focus is always on the children’s best interest.

To ensure that a child’s best interest is the chief consideration of litigants and the Court, Bill C-78 provides an extensive list of factors for the Courts to consider what parenting arrangement would be in the children’s best interests, with the primary consideration to be the child’s physical, emotional and psychological safety, security and well-being. These factors include:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

By providing a framework for the Courts to determine the child’s best interest the hope is that the new legislation will provide parties with some more certainty in the Court system with respect to parenting. As children are often the ones most affected by high conflict divorces, the proposed changes to the Divorce Act aim to focus on the rights of the children and what is in their best interests. The changes in the legislation will also require lawyers to advise their clients on alternative dispute resolution processes before starting a Court Application is another way to ensure that the focus remains on the children.

The proposed changes to the Divorce Act set out in Bill C-78 still have to be debated and voted on in Parliament before they become law. However, many family law lawyers are applauding the proposed amendments for their clarity and focus on the child. As Barack Obama said, If you’re walking down the right path and you’re willing to keep walking, eventually you’ll make progress.”

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