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Effect of new terminology likely limited in family law

Updated Divorce Act terminology could help cool off some heated disputes, Toronto family lawyer Lisa Gelman tells AdvocateDaily.com.

The federal government’s intention to replace terms such as "custody'' and "access,” with more child-focused language, including “parenting orders” and “parenting time,” was a key plank of Bill C-78, recently introduced in the House of Commons.

“Some of our clients find those words can add to the stress of a divorce,” says, Gelman, principal of Gelman & Associates. “If you have a father who’s been very involved in the family before the separation, and a mother who wants sole custody, then the father may feel slighted or belittled.

“The amendments take away these terms and put the emphasis on the decision-making aspects of parenting instead,” she adds. 

Still, Gelman says there are limits on how effective such changes can be.  

“Some people are very litigious by nature and will find a reason to argue, whether it’s for reasons of ego, narcissism or perceived vulnerability,” she explains. “They will likely look behind the words and find something else to fight about."

“Separation and divorce impact the lives of millions of Canadians and can be challenging for families, especially for children,” Justice Minister Jody Wilson-Raybould said in a statement announcing the proposed legislation, which marks the first major update to the federal family laws in more than two decades. “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.”

In addition to the Divorce Act, the bill would also amend the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.

Other proposed changes would enhance family support enforcement, and encourage parties to stay out of court by requiring lawyers to inform clients about alternatives to litigation, including mediation and arbitration.

“The focus on alternative dispute resolution is very welcome,” Gelman says.

Despite the advances, she says she would have liked to see the amendments address the possibility of mental health screening.

“Sometimes there’s a suspicion that arguments and allegations are being made in bad faith, and that the party’s behaviour is unreasonable,” Gelman says. “But in those cases, there’s very little anyone can do. It would be nice for a judge to be able to recognize what's going on and order an assessment to get an idea of what motives may lie behind the issue.

“I can see an argument that it may be intrusive, but if you could craft the legislation in such a way that it protects rights while allowing screening to occur, then it could reduce a significant amount of conflict,” she adds.  

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