Divorce Act amendments a long time coming: Siegel

By Patricia MacInnis, Senior Editor

Long-awaited changes to the Divorce Act that replace outdated language and reflect a modern approach to parenting are a welcome update, Toronto family lawyer Brahm Siegel tells Law Times.

The online legal news site reports that the enactment of Bill C-78, which is now before the Senate, will see the words “custody” and “access” replaced with “parenting orders” and “contact orders.”

Siegel, senior partner with Nathens, Siegel Barristers LLP, says lawyers recognize that classifying one parent as custodian and the other as one with access are antiquated notions, so they have been using different terms in family law agreements.

“We might say the parties have joint custody of the children and that means that they share in decision-making responsibility and then we don't use the term access,” he says.

The new bill also contains provisions that encourage parties to resolve matters through mediation, arbitration and negotiation in an effort to reduce the potential negative impact on children, Law Times reports.

In the current family justice system, Siegel says judges can’t require parties to mediate their disputes. Most courts offer free mediation services, but they’re very limited, he adds. So while the amendments will promote alternative dispute resolution, judges will have to consider the financial means of the parties before recommending such measures, Siegel says.

Queen’s University professor Nicholas Bala says Bill C-78 includes the first significant change to the legislation’s parenting provisions since it came into effect in 1986.

“One could say this is moving in the right direction, but we need resources,” he says, adding that no additional funding is included, leaving new initiatives up to the provinces to finance.

The origin of the terms “custody” and “access” lie in property law and underscore the protection of parental rights while the focus of Bill C-78 is the best interests of the children and parents’ responsibilities, Bala says.

He says another key provision in the legislation recognizes the importance of considering the perspectives and preferences of children by instituting an obligation on the court to make reasonable efforts to “ascertain” their views.

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