B.C., Alberta influenced proposed Divorce Act changes to reduce conflict, says lawyer
Current system drives parents into 'highly adversarial' court, according to John-Paul Boyd
The federal government's proposed changes to the Divorce Act can be linked to work done in Alberta and British Columbia, a family lawyer says.
The proposed amendments, contained in Bill C-78, mark the first major changes in more than 20 years, affecting tens of thousands of Canadians.
At the heart of the changes is getting divorce disputes out of backlogged courts and into less-adversarial mediation or arbitration sessions. Other changes, like cutting the word "custody" in favour of "parenting time," has been applauded as putting the child's rights above those of the parents.
This was a long time coming and reflects some changes Alberta and British Columbia have implemented locally, says John-Paul Boyd, the executive director of the Calgary-based Canadian Research Institute for Law and the Family.
The bill was introduced in the House of Commons by Justice Minister Jody Wilson-Raybould this week.
Boyd spoke with the Calgary Eyeopener's guest host Jennifer Keene on Wednesday morning about the proposal's significance.
Q: One of the proposals involves dropping terminology like "custody" and "access" in favour of terms like "parenting orders" and "parenting time." What difference would that make?
A: It's about how you perceive things. Language like "custody" and "access" are all about the rights of parents. Ideas about parents' decision-making responsibilities, parenting time and parenting orders, they're more child-focused. They're about the child.
In the battle days, between about 1985 and the mid-1990s, orders were generally for sole custody. So that meant that you had one parent who was the custodial parent and the other parent who was the access parent.
That was a horrible situation to be in.
Parents spent tens and hundreds of thousands of dollars fighting to have custody of their children because as the access parent, your role in the child's life is effectively marginalized. You're entitled under the legislation to information about things like education and health care but beyond that, you're sort of a passerby in the child's life.
So beginning in about the mid to late-1990s, we saw an increasing trend towards joint custody. It didn't mean that you had shared parenting but what it meant was you had more of a say and an involvement in the child's life.
But the language is still highly adversarial. It's polarizing. It pushes people to take positions and, if anything, it drives them into court.
Language like "parenting time" and "parental responsibility" are already used in Alberta and British Columbia. They are an attempt to refocus the legislation to become more child-focused, to think of the person who has the rights as being the child.
It's the child's right to be taken care of well. It's their best interests that we're serving. It's not the interests or wishes of the parents.
My sense is that there has been a change in how we approach things in British Columbia and Alberta because we've adopted this different kind of language. It is less adversarial, pushes people less towards stark, polarized positions, and, I think, overall it's a tremendous improvement.
Q: One of the most contentious things I know among couples who separated is when one parent wants to move and maybe move with the child. How does this bill address that?
A: This is probably one of the most exciting parts of the new bill from a lawyer's perspective.
The guidance that we followed for more than 10 years is in a Supreme Court of Canada decision. The problem with that legislation is that it's set out a list of factors for the court to consider but the same factors could [work] in favour of a decision as oppose it.
What this law does, like British Columbia, which was the first in the country to have legislated principles guiding ideas about relocation, this follows that model, and it has rules about when parents have to give notice about an intention to move.
It describes who has the burden of proof to establish that a move is in the best interests of the child. This is, if anything, an attempt by the federal government to straighten up the mess left by that case.
Q: Do you think that these changes will make the justice system more accessible and efficient? That's what the federal justice minister is hoping. Do you agree?
A: I sincerely hope that this is the case. If anything, the emphasis on out of court dispute resolution models should help.
Even if we can just steer 10 per cent of the divorcing and litigating population out of court, that will free up a substantial amount of court time that can be used to deal with really high conflict matters.
It's not a silver bullet. I wish it were. But I think this is a step in the right direction, and anything that we can do to improve access to justice for families, we should be doing.
This interview has been edited for length and clarity. Listen to the full interview with John-Paul Boyd on the Calgary Eyeopener:
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With files from Josie Lukey and the Calgary Eyeopener.