Accounting for Law
Family, Mediation

Provinces must follow feds’ lead with Divorce Act changes: Tremain

Proposed changes to the federal Divorce Act have strong support in the family law bar, but there are potential problems if changes don’t follow at the provincial level, Toronto family lawyer Julia Tremain tells

“It will be a welcome change if and when it’s consistent across the board,” says Tremain, partner with Waddell Phillips Professional Corporation.

In May 2018, the government introduced Bill C-78, which contains the first significant reforms to the Divorce Act since it was enacted in 1986. It provides for parental orders outlining the exercise of “parenting time” or “decision-making responsibility” concerning any child of the marriage, replacing the concepts of custody and access.

“The change in the language is very important,” Tremain says. “I think many of us have been using those different words — decision-making and parenting time, instead of custody and access — for quite a while.

“When you have words like custody and access, they seem like things that can be given or taken away. With parenting time it’s simply a matter of outlining the child’s time with each parent,” she says.

But Tremain says she sees problems ahead if the provinces don’t follow the federal lead and change their language as well.

“I hope the provinces will adopt some of this new language because otherwise, we will be using antiquated words when we’re in the Ontario Court of Justice. Ontario’s provincial legislation still talks about custody and access so there will need to be some catch-up,” she says.

Tremain says she’s heard a great deal of discussion among the family law bar about the issue.

“There has to be some consistency in the provincial and federal legislation because you’ll have some judges that want an order that says custody, and others saying it’s fine to use parenting and decision-making. You will have to know your judge,” she says.

Another area where proposed federal changes will bring clarity that is still missing from provincial laws concerns the relocation of children by one parent, Tremain says, noting that the Divorce Act currently has no provisions governing relocation, so the courts apply the “best interests of the child” test with unpredictable results.

The reforms set out arrangements for notice to the other parent, procedures for objecting to the relocation, factors the court must take into consideration before ruling on the matter, and tests to determine who bears the burden of proving that the relocation is or is not in the best interests of the child, she says.

“It will be good to get some clarity around mobility, outlining when a parent can move, and whether the burden is on the moving parent or the remaining parent to show what’s in the best interests of the child. It’s been very hard to predict whether a parent will be able to move or not,” Tremain says.

There are a number of other improvements proposed in the Divorce Act that she would like to see implemented at the provincial level, starting with an increased emphasis on safety.

New measures will be available to address family violence, such as requiring primary consideration be given to the child’s physical, emotional and psychological safety, security and well-being when determining the best interests of the child, Tremain says. The factors to be considered in the “best interests of the child” test will now include family violence and any conduct that constitutes a pattern of coercive and controlling behaviour such as emotional and financial abuse.

“Anything that helps to take the kids’ needs and wishes into consideration is important,” Tremain says. “Though they’re not the decision-makers, there’s certainly a movement to ensure children’s voices are heard in these matters.”

The updated Divorce Act will also include a proviso that enables grandparents to obtain contact orders so they can have regular visitation with their grandchildren, she says.

“Access to grandparents is a change because at present they don’t have legal standing,” Tremain explains. “This will give them a stronger basis for making that claim.”

There are also provisions requiring parties to participate in alternative dispute resolution and even empowering the court to order them to participate, but Tremain isn’t overly optimistic about the prospects of success.

“It would be great to be able to order dispute resolution, but the problem is buy-in from the parties on issues such as parenting coordination, counselling and mediation. They have to be committed. Mediation isn’t going to be effective if both spouses don’t fully support the option,” she says.

The federal reforms also aim to change the focus from an adversarial one to more of a negotiated settlement between the parties and Tremain says she would like to see this bolstered by provincial buy-in.

“One thing people forget is that when they negotiate they have so much more control,” she says. “When they litigate, the judge can make a decision about their finances, their kids, their future and it’s out of their control. It’s really important to exhaust all other avenues before you hand over such important decisions to a judge.”

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