Better, but not perfect

On September 24th, Ontario’s Attorney General Doug Downey introduced Bill 207, the Moving Ontario Family Law Forward Act.  

This Bill is the province’s long-anticipated follow-up to the federal government’s 2019 changes to the Divorce Act, which are to come into effect on March 1, 2021. For that reason alone, Bill 207 is important because, if passed, it will ensure that Ontario’s provincial family laws align with the federal legislation. This way, parents – regardless of which statute is appropriate for their situation – will have access to substantially similar legislation when they need to resolve post-separation parenting issues.

Some background

For those whose lives are not steeped in family law, a little background information might be useful to assist in understanding the differences between the Divorce Act  and the Children’s Law Reform Act and in interpreting the significance of Bill 207.

The Divorce Act, as the name indicates, applies to couples who are married and seeking a divorce. When someone applies for a divorce, they can also ask the court to sort out what are called corollary issues: parenting arrangements for children, child and spousal support and division of property.

When people are not married, the Divorce Act does not apply to them, so they use provincial/territorial laws to resolve family disputes at the time of separation. In Ontario, the law that governs post-separation parenting issues is the Children’s Law Reform Act.

Because there is a fee to apply for a divorce in Canada as well as a one-year waiting period, many people who are married as well as those who are not use provincial/territorial laws to sort out issues like parenting arrangements, then apply later for a divorce. This is why it is important for the two levels of legislation – federal and provincial – to align: there should be little or no difference in the way the court considers appropriate parenting arrangements as a result of whether or not the parents are seeking a divorce.

What’s good about Bill 207?

Those of us who work with women fleeing abusive relationships are pleased that, despite the many distractions created by the pandemic, the provincial government is moving ahead with revisions to this important piece of legislation. Many clauses in Bill 207 will significantly increase the likelihood that women with children who are leaving an abusive partner will be able to obtain a parenting order that keeps their children — and them – safe and able to move on to lives free from abuse and threats of abuse.

Just what does the Bill say?

Bill 207 replaces the language of custody and access with language deemed to be less adversarial: what we are used to calling custody orders will be called parenting orders, and those orders will set out parenting time (with no distinction in language between what used to be custody and access) and decision-making responsibility.

This is a positive step, although an abusive man who is determined to maintain power and control over his former partner will still be able to manipulate this language and find ways to intimidate her.

The legislation also sets out a broad definition of family violence, stipulating that “the conduct need not constitute a criminal offence.” The definition describes family violence as:

“any conduct towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.”

Included in the list of abusive behaviours are, in addition to physical abuse, sexual, psychological and financial abuse; harassment, including stalking, and animal abuse.

This definition, coupled with the inclusion of family violence as a mandatory consideration in the best interests of the child test, which is the test judges are required to apply in making decisions about children’s post-separation care, should ensure that family violence is given serious consideration in family law cases.

It could be better

Bill 207, despite its strengths, could be better.

The decision-making clauses stipulate that the court can order that one parent have primary responsibility for making “significant” child-related decisions about health; education; culture, language, religion and spirituality, and significant extra-curricular activities, but that either parent, during parenting time with the child, has “exclusive authority” to make “day-to-day” decisions about the child.

Obviously, a parent should be able to make both minor and emergency decisions while their child is with them, regardless of who has primary decision-making responsibility. What breakfast cereal to provide and what to do if a child becomes seriously ill or is injured should not require consultation with the other parent.

However, the language in the Bill is vague enough that an abusive former partner may well manipulate their “exclusive authority” to make decisions that have an impact on the child’s life more generally. For example, that parent could take the position that whether or not to allow the child to go to a swimming lesson is a day-to-day decision, thus interfering with the other parent’s decision to enrol the child in swimming lessons.

The Bill continues to treat maximum time with both parents as automatically good for children, which is not always the case where one parent has been abusive to the other. The best interests of the child test requires the court to consider “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent,” which can place a mother seeking to protect her child from an abusive ex in a difficult position. Recent cases and research clearly show how quickly the court’s attention can be diverted from the mother’s assertion of family violence to the father’s allegation of parental alienation.

To make the point about maximum contact abundantly clear, Bill 207 contains a subsequent clause:

“In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.”

Together, these clauses create something close to a legal presumption in favour of shared parenting, which is a very bad thing for women with abusive partners.

One further disappointment is the Bill’s focus on the use of alternative dispute resolution processes (ie mediation), which does not adequately acknowledge that such an approach is not always appropriate in cases involving coercive control and fear.

What’s next?

Bill 207 has passed First Reading in the legislature. Once it passes Second Reading, it will be sent to committee for hearings, at which time interested parties will have the opportunity to provide opinions and comments to legislators. The government appears to wish to pass this Bill quickly, and feminist organizations and those working with survivors of family violence will ensure that our concerns are heard.

Stay tuned for ongoing updates about this important piece of Ontario law reform.

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