On May 22, 2018, the federal government introduced Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. While most may be caught by its catchy name, Bill C-78 is something that family law practitioners and litigants alike should take note of – they are the first major reforms to the Divorce Act in almost two decades.
If spouses divorce in Canada, their divorce and any issues of child support, spousal support, custody, and access are governed by the Divorce Act. If spouses are not married, these issues are governed by the provincial family law statute(s) in force in their province of residence. In all cases, issues of property are resolved according to the provincial laws.
While the proposed changes to the Divorce Act and the related statutes are wide-ranging, arguably the most important changes will be related to the custody and access (or 'parenting') provisions of the Act. Currently, the Act speaks in terms of 'custody' and 'access' which, while familiar to most, are considered out of touch with modern views of separated parenting. Scholars, experts and practitioners alike believe that the terms 'custody' and 'access' promote a mindset of winners and losers in family law – that custody is something to be prized, and access is for secondary parents. In response to this, the new legislation will replace the terms with more child-focussed language, such as 'parenting orders' and 'parenting time.' Many judges and lawyers already employ such neutral terms, but having it enshrined in the law signals a definite shift in the thinking of the legal community. While some may view this as window dressing, others who have seen the financial and emotional expense of fighting for 'custody' can appreciate the real difference a subtle linguistic change can make.
The proposed legislation will also introduce criteria for determining whether a proposed parenting order is in a child's best interest. Most would be amazed to learn that the Divorce Act contains no criteria to determine whether any specific order related to a child (whether they can move with mom to Cabo, whether they should spend Chanukkah with their father, etc). Up until now, judges have had to make reference to provincial statutes governing custody and access, and judicial decisions, for guidance as to how to make these decisions. It is likely that the proposed legislation will simply adopt the concepts already found in most provincial statutes.
The final major change in relation to custody and access is introducing criteria for mobility cases, those where one party asks to move away with the child after separation. As it stands currently, there are no statutory criteria for determining these cases – federal or provincial. In 1993, the Supreme Court of Canada released its decision in Gordon v Goertz, which is the governing decision on mobility cases. The Court held that each case must be decided on its facts, but enumerated a list of factors to consider. The intervening 24 years has seen a number of judicial decisions add to the framework that the court must apply. Mobility cases are notoriously fact-specific – as it stands, it is fair to say that the dominant factor is the presiding judge's view of whether they think the particular move will benefit the child or not. It will be interesting to see how the federal government formulates the 'guidance' it provides to judges, and whether it will depart significantly from how the law has developed.
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