General Overview

A much-anticipated change to the federal divorce legislation was announced in May, 2018 promising a modernizing national reform. Bill C-78 (the “Bill”) brings a major legislative change to the Divorce Act for the first time in more than twenty years. The general purpose behind the change is seemingly simple – to put the best interests of the child in the center of the legislation that governs divorce. Tabled in the House of Commons on May 22, 2018, the Bill aims to modernize the federal law by introducing amendments to the Divorce Act, as well as to the Family Orders and Agreements Enforcement Assistance Act (FOAEAA) and the Garnishment, Attachment and Pension Diversion Act (GAPDA)1.

Expanding on the Changes to the Divorce Act

Given the complexities of regulating divorce and the interplay of the existing federal and provincial legislation, it is unsurprising that the task to reform the federal law is a challenging one. In an effort to address the widespread concerns with the largely outdated legislation, the new Bill focuses on the welfare and best interests of the child throughout the entire proposed enactment. The letter from the Canadian Bar Association to Justice Minister Jody Wilson-Raybould identified the following areas in urgent need of improvement: relocation of children, regulation of child support in shared parenting situations, as well as the outdated terminology that increases conflicts (such as “custody” and “access”).2 With this “preamble” in mind, the amendments to the Divorce Act intend to do the following:

(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”.3

Looking at the Bill: How Will the Change be Achieved?

Overview and analysis of the selected portions of the Bill is helpful in illustrating how the change will be achieved. In one of the major swiping changes, the Bill alters the fundamental terms that the Divorce Act operates with: the enactment will repeal definitions such as “custody” and “custody order” in subsection 2(1) of the Divorce Act.4 The said section will be supplemented with new terms such as the following5:

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities;

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

Under Bill C-78, parents, or courts where necessary, will allocate or share “decision-making responsibility” and schedule “parenting time”.

This change aims to repeal the language that is largely outdated and seen as a contributing factor to conflict and contention involved in situations governed by the Divorce Act.

Will this language actually make a difference? This debate is not new to the legal circles and has been raging for years. Some provinces have already taken actions in this regard. For instance, in 2003 the Alberta Legislature, in a deliberate move, abandoned what has come to be seen as outdated language of “custody” and “access” and started a new chapter by enacting the Family Law Act that operated with new terminology similar to that proposed by the Bill. British Columbia similarly followed suit in 2011 by opting for the updated terminology in its corresponding Family Law Act.

Addressing whether the switch in terminology is a “distinction without a difference”, the Alberta Provincial Court in the recent 2018 decision in Taylor v Tomlinson categorically stated that the statutory interpretation supports the fact that the new language is a clear departure from the previous legislation.

“To say that there is no difference between the old and new terminology ignores the actions of at least two provincial legislatures and the stated intention of the Government of Canada to adopt the new language with a view to making the law more ‘child-focused with a greater emphasis on the actual tasks of parenting’”.6 Although the Taylor court discussed the Family Law Act amendments, it provided this commentary in light of the government announcement of the new legislative changes to the divorce legislation.7

How important is the language? The proponents of the amendments who see the new Bill as the much-needed wind of change to the outdated federal legislation say that the terminology holds a lot of power. So much so that the family law experts have written extensively on recommendations to the family law practitioners specifically on the language of conflict. For instance, in his article for the Legal Education Society of Alberta, the Honourable Victor Tousignant writes that using “softer words and concepts” and avoiding the hot-buttoned terms of “custody” and “access” can go a long way in contentious family law proceedings.8 The word “custody” implies ownership and helps to create a mentality that bolsters adversarial battles about the care of children upon a marriage breakdown. The proposed terminology is far more descriptive of the roles to be taken in terms of co-parenting after separation. It also emphasizes the needs of children and the corresponding responsibilities of parents, rather than focusing on parental rights.

Another crucial amendment, focused on the best interests of the child, adds the language of emphasized protection: the Bill aims to add Section 16.1 to the Act which will authorize courts to make “parenting orders” governing exercise of parenting time and decision-making responsibility in respect of any “child of the marriage”, a term that is further defined at paragraphs 2(1) and 2(2) of the Act.9 This addition not only replaces the previous authority that is conferred by the Act to make “custody orders”, but it also does so with the use of new terms geared towards conflict resolution.

The Bill further specifies that either or both spouses can apply for a parenting order. It sets out procedures that apply for persons other than spouses, such as people who stand in the place of a parent, to apply for such an order. Importantly, a special emphasis is placed on the process of granting these parenting orders with regard to the best interest of the child. The enactment amends Section 16 of the Divorce Act to direct courts to take into considerations relevant factors to determine the child’s interests.10 This is largely seen as a positive change that gives specific directions to the court when making a determination of the best interests of the child.

Further examples of expanding the protection of the child’s best interests include such provisions as Section 16.8 that will be added to Section 16.96 of the Divorce Act which now creates a process that requires individuals with parenting time or decision-making responsibility to notify any other person with such privileges of an intention to relocate or change the child’s place of residence.11 The clause further provides for mechanisms for the person with parenting time or decision-making responsibility to object to relocation by way of application. Although the new enactment does not entitle the court to prevent a parent from relocating a child, a court is now directed to make a relocation order that engages the Charter mobility rights of the child only “in pursuit of the best interests of the child”.12 Further more promising changes include such additions as guidelines on exact steps on how to respond to requests to relocate a child. The proposed changes outline the guidelines under section 16.92 by providing a list of factors to be considered by the court and effectively addresses the issue of who bears the burden in proving the that relocation is in the best interests of the child in section 16.93.13

Criticism: Does the Bill go far enough?

However, some of the commentators are unconvinced that the changes go far enough. The criticism largely acknowledges that, to an extent, the federal government is limited in its capacity to fully address family law issues on a national level through “no fault of its own” due to the complexities of the system.14 Pursuant to the division of powers, provinces have jurisdiction to deal with property issues that concern a separating couple and thus, the issue is further complicated by the fact that while divorce remains to be the prerogative of the federal legislation, provinces are at liberty to regulate the split of property upon family separation, as well as to address child and spousal support issues.

Indeed, due to this dichotomy, both provincial legislation and case law have developed a body of developments that went ahead some of the federal law. Thus, the critics maintain that the federal amendments introduced by the Bill are merely “catching up” to some of the changes that have been long enacted by the provinces.15 For instance, the Bill includes the focused definition of the “best interests of the child” while some of the existing provincial legislation has previously defined and operated under the directive of such best interests.

As a further example, the current Act requires that court decisions concerning a child be made in the “best interests of the child”. The majority of the existing provincial legislation has defined this term for many years. This can be further seen through the resulting body of case law. For example, in the 2012 decision of Koeing v Koeing, the Saskatchewan Court of Queen’s Bench noted that although the “best interests” test governs the determination of several issues relating to the child upon separation as prescribed by the Divorce Act, the factors to determine those best interests are outlined in the Children’s Law Act and are commonly cited as an outline of the relevant considerations.16 Nevertheless, in light of the objective to bring clarity to the Act, it can be argued that the much-needed uniformity has the potential to bring a positive change in unifying the application of the same definition of the crucial concept of the child’s best interests.

Further, it is not yet clear what added effect the Bill will have on the use of alternative dispute resolution (“ADR”). Critics argue that the courts have been directed to encourage family law litigants to explore the options available under ADR for many years. The summary of the proposed changes to the Act states that the new amendments will create duties for parties and legal counsel to encourage the use of ADR options. Yet, for example, it is argued that the existing legislation has already provided for courts to make referrals to mediation in many provinces.17 In its overview of the Bill, the Canadian Bar Association has identified three most significant areas of the proposed change (paramountcy of the “best interest of the child” test, clarification of the “best interests” guidelines, and substitution of the outdated terminology), reinforcement of dispute resolution not being one of them. Though the CBA further stated that “[o]ther changes that on first reading appear to be in line with CBA advocacy include an emphasis on dispute resolution and early intervention to avoid litigation and court time”, the exact effect beyond the proposed emphasis on ADR and how changes will differ from the existing body of law will need to be determined upon actual application of the new amendments.18

Other major criticized omissions by the Bill include not addressing the so-called “40 per cent rule” found in the Child Support Guidelines and its controversial effects. The rule enables a parent with more than 40 per cent or more of parenting time to request a reduction of child support amount payable to the primary parent. Reportedly, it has been pointed out that the 40 per cent rule creates more stress in relationships treating children as pawns and replaces the best interests of the children with a focus on child support calculations instead.19 Proponents of a more child-focused approach have repeatedly called for substitution of the said rule with a concept of “substantially equal” time which would provide for a less arbitrary determination and reduce potential conflicts in connection with competing for the children’s time.20 The new federal amendments are yet to address this concern.

Similarly, another concern that remains unaddressed is initializing the names of divorcing parents and their children to avoid such crucial information from becoming public, which especially important in the modern age of virtually unlimited internet access. Further, another much-discussed concept of appointing a parenting coordinator in high-conflict separations did not find its way into the proposed federal changes in the Bill. Appointment of a parenting co-coordinator is regarded to be an effective tool under ADR resources which allows for a third party to be appointed to assist divorcing parents in resolving daily conflicts associated with parenting arrangement, parenting orders, scheduling activities, etc.21

Conclusion

Unfortunately, there does not seem to be an “easy fix” that would mend years of outdated family law legislation and rapidly developing issues posed by modern divorce. While the proposed Bill might not be bringing an all-encompassing change, such change is difficult to fathom and enact at once in the first place, given the complexities of the precise issue of divorce in the context of federal and provincial legislative dynamics. “We’re wanting to provide as much clarity in terms of what we mean by the best interests of the child, clarity in terms of what we mean in terms of domestic violence and clarity around relocation,” Justice Minister Jody Wilson-Raybould said commenting on the proposed changes.22 It is undoubted that the unaddressed concepts will continue to have a problematic effect, yet, much-needed clarity and uniformity proposed by the Bill can be seen as a promising first step in a long-term national reform. Having passed the first reading, the Bill thus focuses on the goal of emphasizing the rights and best interests of the child and is hoped to address some of the shortcomings of the existing Divorce Act.