On May 22, 2018 Justice Minister Jody Wilson-Raybould tabled Bill C-78. This Bill looks to make changes to the Divorce Act, an Act that has not seen changes in 20 years.
Don’t mistake these changes for a fix to the overall process…that is a much larger issue. We know that the system is flawed, expensive, lengthy and outcomes are not consistent. There are little consequences for bad behavior or abuse of the systems and processes. Accessing it just leaves many clients lost and children’s best interests not being met. The changes proposed by Bill C-78 are only a piece of the puzzle. While I see many comments saying that the changes don’t go far enough, perhaps it’s enough that there is change.
So what concerns does Bill C-78 address, and will they promote positive change?
The legislation looks to change language by using less adversarial terms such as parenting instead of custody. As a mediator I know that language is very important and in the mediation profession, we are very focused on using words and terms that support resolution, not conflict. It’s the thinking behind what “custody” means however that causes the disputes between parents. How do we change the words without the meaning? Perhaps shifting the language for all of the professionals involved; not just the parents, will make a difference to the culture and in turn provide a more parent and child friendly process. This will mean changing the culture for all, not just the married parents covered by the Divorce Act.
Personally, if I had to change 1 word in the whole messy process that separation and divorce can be it’s ‘ENTITLEMENT’. It speaks to the best interest of the parents and not the children – In my opinion anyways.
Best Interests of The Child
Bill C-78 sets out definitions for the best interests of the child. Guidelines are not new, in practice we already look to the Children’s Law Reform Act in Ontario to help guide decisions on the best interests of the child. I’m wondering how this legislation will provide better guidance? Conflict arises when the parents have different views of what is in the best interests of the child and interpret guidelines to support their views. Will providing a clear definition in the Divorce Act really change or reduce conflict between the parents? Will it help judges make better decisions, lawyers better support their clients or mediators help parents have more fruitful conversations?
Support of Dispute Resolution Outside of Court
The legislation appears to support and require that lawyers encourage the use of Family Dispute Resolution services. As a mediator and Certified Divorce Financial Analyst I clearly support this one for obvious reasons. In my view this will require a move to more collaboration between lawyers and other professionals to support clients in a team approach. It will also require more acceptance of alternate dispute resolution offerings and Memorandum’s of Understanding resulting from mediation. What’s the point of encouraging solutions that aren’t accepted in court and not supported by lawyers?
Addressing Family Violence
Bill C-78 gives the courts more measures to address family violence. We need to be supportive of this! Clear direction on how to support these families is imperative if we are focusing on the best interest of the child and the safety of the family.
The proposed changes establish clear guidelines for one parent wanting to relocate with a child. Wonderful! Consistency in applying these guidelines should help parents be better able to resolve these disputes without court and help judges manage expectations for those parents that can’t.
Collection of Support Payments
And last but certainly not least, any legislation that makes it easier for people to collect support payments should be front and center. The tables and guidelines are terrific but if the payments can’t be calculated due to lack of information or collected we are not doing these families justice. Best interests of the children must include the commitment to meeting the parent’s financial obligations to them.
As someone who works with separating and divorcing clients daily AND had the unfortunate experience to see the Family Law process first hand during my own challenging divorce I’d love to put everyone in a room together and change everything. Make it quicker, cheaper, more consistent and more family friendly. Start with the assumption that everyone (professionals and families) are acting in good faith and truly want to resolve issues.
I see lots of positive examples; including high conflict parents, resolving issues outside of the courtroom. I know it can be done. It’s not that I have rose colored glasses on, I also know the benefit to some parents of having someone else make the decisions for them because they are just not in a place to make them together.
Like it or not, the court process will always be required. Changes to the Divorce Act will ensure that we have strong guidelines to follow and by “we” I mean divorce professionals, judges and parents. We need alternative solutions for those who don’t need the enforcement of the court and we need to stop the abuse happening in the system, at all levels.
Above all, we need hope that these proposed changes; along with a commitment to them, provide us with the momentum to keep making positive change. Let’s not stop here.