On May 22, 2018, the federal government introduced Bill C-78 which would amend the Divorce Act. The notable proposed amendments include the following:
- replacing the terms “custody” and “access” with “parenting” and “contact” and adding the terms “parenting time” and “decision-making responsibility” instead
- encouraging the use of alternative dispute resolution such as divorce mediation to settle divorce cases
- establishing criteria and a framework for the relocation of a child from one city to another
On its face, this Bill is an expression by the federal government that progress was needed in the way that separated families were treated under the law. Moreover, this was an opportunity for the current government to demonstrate its commitment to family law justice in Canada. However, much of what is being proposed has been already implemented in out-of-court settlements, as well as in decisions made by judges.
As it relates to the removal of the terms “custody” and “access”, in 2015, the Ontario Court of Appeal very succinctly addressed this very issue in the case of M. v. F., 2015 ONCA 277, where Justice Benotto stated:
“For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.
As it relates to the use of alternative dispute resolution to settle divorce cases, since 1997 when the Family Law Rules were introduced, the primary objective of the rules was to enable the courts to deal with cases justly. The primary objective the Family Law Rules was defined to include:
“At an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial…and…encouraging and facilitating use of alternatives to the court process.”
As it relates to child relocation, for 22 years lawyers, mediators and judges have been following the Supreme Court of Canada decision in Gordon v. Goertz which laid down the legal test for child relocation. The court set out the law so that the parent seeking to remove the child would first have to show that the move would cause a material change in the circumstances of the child and, if so, the judge would embark on a fresh inquiry regarding the best interests of the child. The Supreme Court of Canada specifically directed judges to address the following 7 factors:
- the existing custody arrangement and relationship between the child and the custodial parent
- the existing access arrangement and the relationship between the child and the access parent
- the desirability of maximizing contact between the child and both parents
- the views of the child
- the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child
- disruption to the child of a change in custody
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
So in conclusion, Bill C78 is really nothing new. The ideas and principles set out therein have been considered, used and applied in divorce cases for many years.
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