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On June 21, 2019, Bill C-78 was given Royal Assent, implementing a set of broad changes to family law through amendments to the federal Divorce Act. Originally deferred, the changes took effect on July 1, 2021, making these the first substantive amendments to the legislation in over twenty years. The new provisions use child-focused language and increase the focus on the best interests of children in creating parenting arrangements, give consideration to family violence, and enshrine new duties on parties navigating divorce. It is hoped the amendments will set a new tone for the resolution of disputes, reducing family conflict and fostering a more cooperative culture.

The Importance of Child Centric Language

A longstanding criticism of the former Divorce Act was the use of “custody” and “access” terminology in settling parenting arrangements. The language was frequently misunderstood by litigants, erroneously equating custody to children being under one’s primary physical care rather than recognizing custody as conferring decision-making authority over a child. When custody is contrasted with access, described as the ability to have contact with and spent time with a child, the language contributed to a perception that an access parent assumed a lesser role in their child’s life. From the beginning this set a damaging tone for parents in court proceedings, driving them to battle in an effort to come away the custodial parent and in the process harming relationships.

The reality of this damaging mindset has been recognized by Ontario courts, specifically in a 2015 Ontario Court of Appeal case. In M. v. F. Justice Benotto acknowledged that:

“for over twenty 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.”

In response to the charged language, there has been an effort to amend the federal legislation to move away from the win/lose outcomes that appeared built-in with the former terminology. Instead of “custody” and “access”, the legislation now speaks of “decision-making responsibility” and “parenting time”. Decision-making responsibility is the responsibility for making significant decisions about a child’s well-being, including health, education, culture, and significant extra-curricular activities. Under section 16.1 a court may make a “parenting order” providing for the exercise of parenting time or decision-making responsibility, and decision-making responsibility may be allocated to either spouse, both spouses, or to a third person. The intent is to showcase a regime of shared responsibilities between parents which may better equate with each parent’s view of their role with the children. Rather than presenting decision-making authority over children as a right of parents, the Divorce Act re-frames it as a responsibility, with children being the focus and parents acting to ensure that children’s interests are met.

New Duties Change the Tenor of Divorce Proceedings

The updated Divorce Act contains some significant changes by more fully outlining the duties of parties, lawyers, and the courts, in the process adding new obligations in an effort to change the tenor of divorce proceedings. Section 7.2 now requires a party to a proceeding to protect any child of the marriage from conflict arising from any issue being decided under the statute to the best of their ability. Conflict between parents during separation can impair children’s well-being, with the amendment now charging parties to try to shield children from conflict as much as possible. Recognizing that family issues can be resolved faster and with less expense outside of court, the Divorce Act also requires divorcing spouses to try to settle and resolve matters through a family dispute resolution process other than proceeding through court. The change encourages parties to regard courts as a last resort while preserving flexibility and choice. Alternatives such as negotiation, collaborative family law,  mediation, or arbitration are encouraged, to the extent that it is appropriate to do so, recognizing that it may not be suitable in cases with a history of family violence or a significant power imbalance.

Legal advisors acting on a client’s behalf also assume a new duty in accordance with the legislation’s goal of achieving resolution by means other than court. Lawyers must now specifically encourage clients to consider an alternative dispute resolution process unless it would be inappropriate in the circumstances. Prior to the amendments, the Divorce Act merely required advocates to discuss the advisability of alternative dispute resolution, but a more expansive discussion with clients is now clearly envisioned, with the new section adding a duty to actively encourage parties to resolve matters without turning to court proceedings.

Reforms Aim to Make the Family Justice System More Efficient

The amendments have generally been well received and are viewed as instilling a process for parties to work more collaboratively so that families will end up with improved parenting arrangements that will better account for the best interests of children rather than parents. The requirement for parties to pursue alternative dispute resolution fits with this objective of reducing conflict and eschewing win/lose outcomes so families can better cope with separation and divorce and resolve cases less acrimoniously.

Contact Boulby Weinberg LLP in Toronto for Representation in Alternative Family Dispute Resolution and Skilled Family Mediation Services

The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters for clients in Ontario and internationally and regularly present clients with customized dispute resolution strategies. We are experienced in representing clients in a variety of dispute resolution methods. Partner Oren Weinberg also offers accredited family mediation services to families looking to resolve disputes outside of court. If you have concerns, our lawyers can help you with solutions tailored to your unique circumstances. To arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.

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