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Court system – not Divorce Act – needs overhaul

The court system – not the Divorce Act – needs updating in order to improve access to justice in family law, and create more effective processes overall, says Toronto lawyer Michael Cochrane.

A recently introduced private member’s bill intends to amend the act to include a rebuttable presumption that “equal shared parenting” (ESP) supports the best interests of children, the National Post reports.

Bill C-560, which recently moved to second reading in Parliament, operates on the principle that the best parenting model for separating parents is one in which parents are presumed to have an equal role in raising their children.

“I have a great deal of sympathy for people who are in custody battles in our courts, but changing the legislation to say there’s a presumption this way or that way is not going to solve the problem,” says Cochrane, partner with Brauti Thorning Zibarras LLP. “Regardless of legal language, we put people in a process that invites a fight over children.”

Cochrane says an approach that favours ESP is likely to be just as problematic as the current language.

“Each parent should be focused on explaining to the court how their parenting experience and plans are in the best interest of the children,” he says. “There shouldn’t be any presumption one way or the other. There shouldn’t be a presumption that the mother is a better parent or the father is a better parent – there should be no bias. It must be child focused.”

For example, it cannot be presumed from the outset, says Cochrane, that each parent is equally equipped to have 50 per cent of the children’s residential time. Careers, travel commitments, the age of the children, and even the physical location of post-divorce homes all factor into residential schedules.

“Let’s say the children are 12, 14 and 16. They may not want to be moved automatically away from their peers 50 per cent of the time. It might not make sense for them to uproot themselves every second week to travel to another home. Each family is different and residential schedules should be customized to each family’s needs. Unfortunately, our family law process does not encourage that approach. We have a winner-take-all approach.”

“Also, let’s not forget that joint custody is about more than residential time – it’s about decision making,” he says. "Parents need to find a way to make important decisions about their child’s health, education, religious upbringing and general welfare co-operatively. But again, our system does not invite parental co-operation."

It’s unlikely the bill would result in decreased acrimony, says Cochrane, “because instead of parents trying to prove why they should have the children, they will try to prove why the other parent shouldn’t have the children. It is still parental acrimony.”

In order to improve the process for families, the target of change shouldn’t be the Divorce Act, says Cochrane – it should be the court system.

“What needs reform is the way in which people are forced to resolve their disputes,” he says. “It’s the court system that’s the problem, it’s not the content of the Divorce Act. The problem is disputes are dropped into a system that is just painful and expensive for families.”

Cochrane says, “We should take family law disputes right out of the court system, and stop treating them the same way we do car accidents and people suing each other over breach of contract. It should be a separate tribunal where people are given access to multidisciplinary support.” Cochrane’s proposal for a "Family Relations Tribunal" garnered him a Toronto Life magazine nomination as one of the 25 smartest Torontonians in 2009.

The topic isn’t new to Cochrane, who made similar recommendations to the House Senate committee behind the For the Sake of the Children report in 1999.

Cochrane envisions a system where families receive multi-disciplinary support based on what they need rather than shotgun relief  that must be claimed in court forms. For example, if woman has a safety concern, her case could be directed immediately to address the need for a restraining order and peace bonds. If a couple faces serious financial concerns, they could directed to financial planners who could develop a way of spreading scarce resources post separation when two houses cannot be run on one pay cheque, he suggests. Genuine legal problems – which are actually rare – would be dealt with by judges.

"We need a more humane system for helping families separate," says Cochrane. And while we are at it, Cochrane suggests, the government should be asked to spend more time and tax dollars trying to support families and attempting to prevent family breakdown in the first place.

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