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Divorce Act changes put best interests of children first

Canada’s federal Divorce Act reforms are a step in the right direction, Toronto family lawyer and mediator Patrick J. Aulis tells AdvocateDaily.com.

Bill C-78, which is under consideration by the Senate after passing third reading in the Commons, is the first major update to federal family laws in more than two decades.

“On the whole, we’re moving the right way,” says Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation. “The overarching goal of the amendments seems to be to refocus not just the court, but also lawyer and parents on the best interests of children as the primary consideration.

“Most of the changes go back to the idea of helping families sort out an arrangement that makes sense for everyone, without getting caught in old traps,” he adds.

Aulis says the proposal would do away with terms including "custody'' and "access,” in favour of alternatives such as “parenting orders” and “parenting time.” These changes could prove very impactful, allowing the system to move on from an era in which the custodial parent was viewed as the “winner” of family law litigation over the “loser” access parent, he says.   

“This child-focused language describes what’s going on better than something like ‘custody,' which evokes a feeling of ownership,” Aulis says.

The new amendments also spell out a list of factors that will go into determining what is in the best interest of the child, and promises to establish guidelines for planned relocations after divorce that would force parents to give notice of their intention to move, and clarify who bears the burden of proof in particular sets of circumstances.

“Courts have always had a mandate to consider the child’s views and preferences, but this puts more of an onus on them to add children’s opinions into the discussion when trying to determine what resolution makes the most sense,” Aulis says.

“Separation and divorce impact the lives of millions of Canadians and can be challenging for families, especially for 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,” then-justice minister Jody Wilson-Raybould said in a statement introducing the legislation last May.

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.

“’I’m already on that bandwagon," says Aulis, who has strong mediation and collaborative law elements to his family law practice. “It’s great to see a recognition that litigation is not always the best way to have people resolve these issues, and more of an active push on parties and their legal advisers to find ways to sit down in negotiation, rather than heading straight to the courthouse.”

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