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Family law changes will address need for consistency between provincial, federal laws: OBA

Ontario bill to amend Children’s Law Reform Act, Family Law Act will advance child’s best interests

Family law changes will address need for consistency between provincial, federal laws: OBA

The Ontario Bar Association has shared its submission to the Standing Committee on Justice Policy regarding Schedule 1 of Bill 207, Moving Ontario Family Law Forward Act, 2020.

The OBA’s submission of Oct. 13, prepared by members of the association’s Family Law Section, recommended two changes to Bill 207. First, the association suggested broadening the definition of a “child” under the proposed s. 18(3) of the Children’s Law Reform Act to include not only minors, but individuals who cannot, due to illness, disability or other causes, withdraw from the charge of their parents.

Ontario’s Bill 207 limits the definition of a child to one who is a minor, which  is inconsistent with how the term is defined under the federal Divorce Act and Ontario’s Family Law Act for purposes of child support, the association stated in its submission. This definition would distinguish between unmarried and married spouses in cases where the spouses have a child with a disability who is at the age of majority or older, which would result in unequal treatment because a different legal regime would apply to unmarried spouses, the association said.

The association noted that Ontario previously amended the provision defining a “child” in the Family Law Act following the filing of a Constitutional challenge contending that the legislation discriminated against children of unmarried spouses who had disabilities because, unlike under the Divorce Act, these children would not receive support once they reached the age of majority.

The second recommended change pertained to the proposed amendment to s. 47 of the Family Law Act. Bill 207 seeks to replace an “application for custody” with an “application for a parenting order respecting decision-making responsibility.”

The association suggested keeping an “application for a parenting order” but deleting the portion about “respecting decision-making responsibility.” The amendment should allow the court to order that a support application will stand over until the determination of parenting time, and not only until the determination of decision-making responsibility, the association said.

The association otherwise approved of the changes introduced by Bill 207 because they will address the need for consistency between provincial law and federal law, given that amendments to the Divorce Act, pursuant to Bill C-78, will come into force in March 2021. Bill 207 substantially incorporates the upcoming changes to the Divorce Act into the provincial Children’s Law Reform Act, the association said.

“The OBA commends the Attorney General for seeking to offer clarity and equal application of laws to married and non-married spouses by responding to our call for consistency between provincial and federal laws through Bill 207,” stated the submission.

The proposed amendments would also modernize Ontario’s family law by advancing the child’s best interests, updating parenting terminology, improving how family violence is dealt with, and promoting resort to family dispute resolution processes if appropriate, the association added.

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