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Divorce Act finally catches up to family law bar

Canada’s Divorce Act is finally addressing the reality of practice among members of the bar, Toronto family lawyer Gary Joseph tells AdvocateDaily.com.

Bill C-78, introduced in the Commons in May, is the first major update to federal family laws in more than two decades

“It’s definitely on the right track, but it’s nothing that hasn’t been happening in the profession for a while,” says Joseph, managing partner of MacDonald & Partners LLP. “The statute is behind the times, so it’s a good thing that it’s catching up.

“Overall, it’s progressive legislation that is moving us forward and anything that can help us avoid horrible custody battles is to be welcomed,” he adds.

Joseph embraces the proposal to do away with terms including "custody'' and "access,” in favour of more child-focused ones such as “parenting orders” and “parenting time." He explains that these terms are relics of a bygone era when the custodial parent was viewed as the “winner” of family law litigation over the “loser” access parent.    

“Most clients come in now with a different perspective in terms of children and a much greater expectation that some sort of shared arrangement will be worked out,” he says. “I don’t think they care if it’s called custody or not, but anything to eliminate the win-lose mentality is positive.”

The new Act also spells out a non-exhaustive list of the factors that will go into a determination of what is in the best interest of the child, but Joseph says Ontario family lawyers have already been using a similar list in the province's Children’s Law Reform Act for the same purpose.

He says the bill’s promise to establish guidelines for planned relocations after the divorce, largely imported from similar legislation in B.C., could prove one of the more impactful amendments. They would force parents to give notice of their intention to move and clarify who bears the burden of proof in particular sets of circumstances.

Until now, Joseph says the only guidance for judges and lawyers came from an old Supreme Court of Canada decision, which has been interpreted in many different ways since it was decided 22 years ago.

“Anything that brings structure to mobility cases is going to help us because it sometimes feels like we’re wandering around in the desert right now,” Joseph says. “If you can sit down with a client, go through these factors and talk about what a judge might decide at trial, it helps the client to assess whether it’s really worthwhile pursuing the matter in court."

In a statement announcing the proposed legislation, Justice Minister Jody Wilson-Raybould said that separation and divorce impact the lives of millions of Canadians and can be challenging for families, especially children.

"That is why this bill focuses on putting the best interests of the child first, reducing conflict, addressing family violence, and encouraging parents and former spouses to meet their family support obligations,” she said of the proposed legislation which will also amend the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act, in addition to the Divorce Act.

Other proposed changes would encourage parties to stay out of court, and include enhanced family support enforcement.

“Some groups will be disappointed with the omission of any presumption of joint custody (parenting). The Senate recommended this in 1998,” Joseph adds.

More recently, in 2013, a private member’s bill proposed to amend the federal Divorce Act to create a rebuttable presumption of equal shared parenting, but failed at second reading in the House of Commons, despite polling that suggested the vast majority of Canadians would support such a measure.

“I thought, given this government’s progressive views on some issues, that it might revisit the subject,” Joseph says. “Maybe the next set of amendments will bring it forward.”

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