In May, the Federal Minister of Justice, introduced a Bill to amend the Divorce Act. According to the Department of Justice, the reasons behind the changes are to promote the best interests of the child, address family violence, help reduce child poverty and to make Canada’s family justice system more accessible and efficient. These are most certainly lofty goals.
There are a number of fairly major changes contained in the legislation. One of the easiest changes to understand is that the new Divorce Act will remove the antiquated terminology of “custody” and “access”. Most of the provincial family law legislation began using language which refers to parenting time (for the actual parents of a child) and contact time (for caregivers who are not actual parents of a child, for example step-parents and grandparents). The use of this more inclusive language is a welcome change, and will hopefully help parents to focus more on their responsibilities of parenting and less on their rights as the custodial parent.
The proposed change to the Divorce Act has also provided the Court with a clear set of factors to consider when determining whether or not something is in the best interests of a child. These factors are considered when the Court is making a parenting or contact order. While most of these factors were already being considered by Courts when making those decisions, the clarity of having the specific factors included in the legislation will make things simpler for people who are not represented by lawyers in Court proceedings. This, in turn, serves the goal of making the family justice system more accessible.
Another change that a new Divorce Act would provide is more clarity around the process that needs to be followed if either of the parents wants to move, or to move with the child. It also sets out the factors that the Court must consider when determining whether to allow a child to be moved over the objection of the non-moving parent. This is one of the most difficult decisions a family must make after a divorce. Hopefully, the clear indication of the factors to be considered will assist parents in making decisions that are best for their children.
Perhaps the most important change, however, is around the recognition that conflict between parents, even after they separate, has serious negative effects for children. It will be the responsibility of the parents to protect the children from conflict arising from their divorce. Parents will be required to try to resolve matters through a family dispute resolution process – which means not going to Court. It will be up to legal advisors to advise parents of services available to assist them with reconciliation, but also to assist them in making decisions outside of Court. Brain science researchers have long recognized the damage that conflicting parents have on their children. It is far past time for parents to understand what damage is being done, and to
instruct their legal advisors to help them reach solutions, without increasing the conflict. Hopefully, the new Divorce Act will be a first step to recognizing and implementing that change.