The federal government introduced new family-law legislation this week which introduces the first significant changes to the Divorce Act in 20 years and is more focussed on the best interests of the child.
The legislation also includes relocation guidelines — when divorced parents want to relocate to another jurisdiction, at a remove from the other custodial parent — with a shifting onus depending on the child care arrangements pending the relocation; and, parents may be required to attend a family dispute resolution process.
“It’s a very child-focussed bill, and so it should be,” says Philip Epstein, a senior partner in family law firm Epstein Cole LLP in Toronto. “The [family law] bar has long supported getting rid of the terms “custody” and “access,” and has long been in favour of relocation guidelines.
“I think [the bill represents] a growing recognition that whenever the legislation being drafted is affecting children, it has to focus on the rights of children, not of parents,” Epstein told Legal Feeds.. “So, you set out the criteria for best interests of the child, and make it clear that family violence is a significant factor in establishing best interests, as is friendly relations between parents.”
Bill C-78 is clear that family violence and its impact will be a key factor in determining the best interests of children. Under “Best Interests of the Child,” the bill sets out a list of factors to be considered by courts in custody disputes that include “(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.”
Absent consent, courts will now be required to make parenting orders, allocate parenting time and allocate decision-making responsibilities in areas of a child’s care and wellbeing such as health, education and extracurricular activities, Epstein says.
“Again, it’s very child focused, and tends to get away from win/lose” scenarios for the family, he adds.
The bill also creates duties for parties and legal advisers to encourage the use of family dispute resolution processes, and will give the court the power to order mediation, “but only in those provinces that now permit such orders, such as British Columbia” but not Ontario, he says.
Section 16.1(6) of the bill states that “Subject to provincial law, the order may direct the parties to attend a family dispute resolution process,” which, Epstein suggests, “needs some clarification” in regards to how the courts might persuade parties to resolve their disputes outside the regular court system.
What to do in the circumstances of proposed parental relocation has been a controversial issue, but the new guidelines will create a shifting onus.
“If you have primary care of the child, the onus is on the other parent” or the objector, to give reasons for his or her objections to the proposed relocation. However, “if you have equal custody, the onus is on the person relocating,” Epstein says, to justify the relocation. The new legislation would essentially override the Supreme Court of Canada’s decision in Gordon v. Goertz, he says, “and places front-and-centre the reason for the proposed relocation.”
The bill does not promote joint parenting, however; “I think those who have been clamouring for family law reform for more than 20 years, particularly fathers’ rights groups, which argue for joint custody, are not going to see that in the bill.” Neither the government nor a fair majority of the family law bar support that, and in the United States, he adds, many jurisdictions that had moved toward a presumption of joint custody have since abandoned it.
The bill will next go to second reading and, assuming it is eventually passed by the House of Commons and the Senate, the amended legislation is expected to come into force in 2019.