On May 22, 2018, Justice Minister Jody Wilson-Raybould announced that the Liberals had just introduced Bill C-78 in the House of Commons, which proposes substantial changes to Canada’s Divorce Act. Many of the changes echo language and concepts found in BC’s Family Law Act. The government’s press release explains that the bill has four key objectives, which are “to promote the best interests of the child, address family violence, help reduce child poverty, and make Canada’s family justice system more accessible.” Changes were also proposed to the Family Orders and Agreements Enforcement Act and the Garnishment, Attachment and Pension Diversion Act, to make it easier to enforce family support obligations.
The summary provided in BillC-78’s First Reading explains that it is meant to do the following:
This enactment amends the Divorce Act to, among other things,
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement
(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19,1996; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23,2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,
(a) give priority to family support obligations; and
(b) simplify the processes under the Act.
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.
Collaborative law and mediation are no longer alternative dispute resolution processes. The advantages of these out-of-court settlement processes have been detailed in the Canadian Research Institute for Law and the Family’s recent report “An Evaluation of the Cost of Family Law Disputes: Measuring the CostImplication of Various Dispute Resolution Methods.” As noted in Bill C-78’s summary, the use of an out-of-court “family dispute resolution process” is encouraged and specifically mentions negotiation, mediation, and Collaborative law. Under the proposed changes, parties to a proceeding will have a duty to consider the best interests of the child, protect the child from conflict arising from the proceeding to the best of their ability, and to try to resolve the matters through a family dispute resolution process. Legal advisors will have a duty to encourage their clients to attempt to resolve their matter though a family dispute resolution process. Subject to provincial law, a parenting order may direct parties to attend a family dispute resolution process. The new terminology does away with "custody" and "access" and instead includes "parenting time" and "decision-making responsibility." The proposed changes confirm that "parenting plans" (often created by the parties with the assistance of Divorce Coaches and Child Specialists in the Collaborative process) may be added to "parenting orders".
Section 16 would be replaced by the following "best interests of the child" section:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(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.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.There are additional factors regarding what is in the best interests of a child when deciding whether to authorize the relocation of a child.
The Canadian Bar Association’s statement about the proposed changes was positive. However, it does not seem that Bill C-78 addresses the issues of shared parenting and child support that were raised by the CBA in their December 2017 letter. Quoting from page three of the CBA’s letter, it is noted that currently, “access to justice for many families is unnecessarily limited, and litigated solutions for child support in shared parenting situations are rarely adjusted in a fair, proportional and economical manner. Parties leaving controlling or abusive situations are especially likely to avoid further contact and conflict with the other parent. The result is that many children and parents are not receiving and paying proper amounts of child support as means and needs change.” Bill C-78’s inclusion of additional methods for enforcing child support is a positive step, but ensuring child support is adequate in shared parenting situations may not have been sufficiently addressed. As the government has stated that one of its main objectives in Bill C-78 is to help reduce child poverty, this seems like an issue that should be revisited.
Bill C-78 is a step in the right direction, as changes to the Divorce Act were long overdue.
Jenny Woodruff, Collaborative Lawyer
Jenny Woodruff, Collaborative Lawyer