Divorce Act changes to focus on best interests of children

By Paul Russell, Contributor

Upcoming amendments to the Divorce Act will change the lexicon of family law and may result in a legal process that is fairer to both parents and their children, says Toronto family lawyer Gene C. Colman.

“The existing divorce law, both statutory and especially case law, fosters conflict and dysfunction,” says Colman, principal of Gene C. Colman Family Law Centre.

“It encourages one parent to show that they are far better than their ex, which leads to them trashing the other’s parenting skills,” he tells “I hope Bill C-78 mandates us to do otherwise, and that all we have to establish is that someone is an adequate parent, not a perfect one.”

The bill — passed by both houses of Parliament but not yet enacted — will solely consider the best interests of the children, and not which parent has played a bigger role in their lives in the past, which the courts currently focus on, Colman says.

“That is absolutely the wrong approach, he says. “As I told the standing committee on Justice and Human Rights in November, the better question would be, ‘Is each caregiver able to meet the child’s needs?’ If so, every effort should be made to provide maximum time with each parent, or 50/50 if that is possible.”

Courts will no longer use the terms “custody” and “access” Colman says, but will instead look at what parenting time is in the best interest of the child.

“Though a rebuttable presumption for equal shared parenting was not the government’s intent with this bill, I think it could be interpreted that way, so it’s going to be exciting to see if that happens,” he says.

In past and current divorce proceedings, Colman says fathers have to show they are exemplary parents in order to get equal parenting privileges.

“The whole thrust of these amendments is to remove the win/lose model from divorce,” he says. “I believe that if a father can show he is an adequate parent, not a super dad, this bill will allow him to receive 50/50 access to the children.”

Colman says social science literature shows that most children are better off having maximum contact with both parents.

“With its use of progressive terminology such as talking about the allocation of both parenting time and decision-making, I hope this bill will remove the incentive between parents to do battle, and instead focus on the children,” he says.

The current Divorce Act does not include a list of factors for courts to consider in determining the best interests of the child in a particular case, though all provinces and territories do in their family law legislation, Colman says.

“Bill C-78 states the best interests of the child is the ‘only’ thing that should be considered,” he says. “It doesn’t state it is the primary consideration, but the ’only’ consideration, with no mention made about primary caregivers.”

Colman says the factors that courts will have to consider when deciding on a child’s best interests include connections with extended family, spiritual upbringing, cultural heritage and the plans each parent has for the child in the future.

“The past conduct of parents is not so important, except on how it reflects on their ability going forward,” he says, explaining an exception would be those parents who have demonstrated that they pose a danger to the child.

“If that person has not sought treatment and could be a danger in the future, shared parenting is not an option, with their time with the child cut off or supervised,” Colman says.

He says he is opposed to how this bill will change how mobility issues are handled in a divorce. Currently, if one parent wants to relocate a child to another city or province, that parent has to show the court how that move is in the child’s interest.

Couples currently going through divorce proceedings should be sure to include a relocation provision in their separation agreements, he advises.

“The government did not want to create a presumption of equal shared parenting in this bill, which I was advocating for, yet they are making a presumption that if there is no mobility provision, the onus is on the parent who stays to prevent it,” Colman says. “This is wrong, and it has implications for family law practice right now.”

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