Redress Risk Management (post until May 31/19)

Divorce Act changes may encourage a less-adversarial process

Pending changes to the Divorce Act, including a move away from the use of such words as “custody” and “access” to more precise language such as “parenting time” and "parenting orders,” may not have direct impact on how those issues are resolved, says Toronto family lawyer Carolina Paterson.

But the new phrasing more appropriately reflects the legal meaning, whether it’s concerning parenting time with children or decision making, says Paterson, an associate with Fogelman Law.

“When lawyers start to engage in the new terminology, there might be some sort of paradigm shift, but I don’t know that the concepts will change the way that disputes on the ground happen,” she tells “I’m not sure the rhetoric, the language of family law, impacts the day-to-day time and money issues that people face.”

The change in the Act from “access” to “parenting time” doesn’t appear to include a reciprocal change to the guidelines, she says.

What does pique Paterson’s interest with the amendment, and where she does see a shift on the ground, is the emphasis on encouraging a less-adversarial process.

“There’s this sort of legislative acknowledgement that people need to enter into the dispute-resolution process earlier than going to court,” she says, adding that the legislation is catching up to the bar and what’s happening in family law. “There is a major shift. People will often try to reach out to counsel to see if they can resolve some of the issues early on.

“There’s this explicit acknowledgement that both parties should try to make headway in a non-adversarial process to resolve their issues.”

With that type of emphasis, Paterson suggests there’s a possibility that the issues of custody and access and other points of contention in a divorce are resolved before they are ever presented to a judge.

She points out that there has been an increased use of mediation in civil disputes and more exposure to alternative dispute resolution, which is considered less adversarial, often cheaper for those involved and less taxing to an already overburdened court system.

“It may be a carry over from mandatory mediation in civil disputes, which some of these clients have been exposed to,” Paterson says.

Certainly in Paterson’s firm, the preferred approach is to resolve the issues outside of the courtroom whenever possible, she says. Its lawyers frequently work with high net worth clients who often have their own companies and have been exposed to mediation to resolve business disputes, Paterson says.

“It makes sense that you would embrace that mind frame in a family law dispute,” she says. “People who come to our firm generally know that we want to resolve this expediently and that court is really a last resort.”

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