On May 22, federal Justice Minister Jody Wilson-Raybould announced Bill C-78, which contains significant changes to the Divorce Act. These changes, when passed, will be the first overhaul of divorce laws in Canada in 20 years.
Intended to increase the focus on what is best for children as well as to reduce the (often unavoidable) adversarial nature of separation and divorce, many of the changes have the potential to improve both the process and outcomes for women leaving abusive relationships. Others raise some alarm bells.
For those whose lives are not steeped in family law, a little background information might be useful to assist in interpreting the significance of Bill C-78.
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: custody and access of 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, those laws are the Family Law Act and the Children’s Law Reform Act. Those laws are similar but not identical from one province and territory to another.
Anyone requiring a restraining order must use provincial/territorial laws to obtain one, even if they are also applying for a divorce.
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 use provincial/territorial laws to sort out issues like custody and access and support more quickly, then apply later for a divorce.
Why do the changes matter?
Even though every year thousands of people in Canada separate and resolve their legal issues without relying on the Divorce Act, Bill C-78 matters to all of us.
When passed, the changes will apply to people in every part of Canada, with no regional variation. A Divorce Act with greater clarity and more detail will serve as a model for future revisions to provincial/territorial legislation. It will be a reference point for judges in all family law cases.
The announcement of these changes is also important because it signals a new and more positive approach to family breakdown by the federal government. The changes reflect what government officials have heard in consultations held with stakeholders over the past few years.
And, these changes offer better protections and outcomes for women and children leaving abusive situations.
These changes look good
Overall, the proposals contained in the Bill related to custody and access are positive and indicate that the federal government has heard the concerns of those of us who work with women fleeing abuse.
Of course, any legislative reform requires careful consideration before hard and fast conclusions can be drawn about its pros and cons. Without this, even well intentioned law reform can produce unexpected negative consequences that are hard to fix.
And, even positive law reform is only useful when it is implemented as its designers intended it to be: there is often a chasm between written law and how it is interpreted in the lands of practitioners. Education and accountability need to accompany changes to the law.
Just what does the Bill say about children?
Bill C-78 would replace the language of custody and access with language deemed to be less adversarial, language that will move spouses away from the concept of winners and losers. Terms like decision making responsibility, parenting time, contact order and parenting order are being proposed.
This is a positive step, although it should be noted that 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 best interests of the child test, which is the test judges are required to apply in making decisions about children, is finally being given some teeth. Criteria are proposed to assist judges in determining what arrangements are in a child’s best interests, and those criteria include a consideration of family violence.
Family violence is spelled out in some detail and breadth, to include coercive and controlling behaviour, actions that cause fear, and non-criminal conduct as well as animal abuse, while excluding self-protective actions.
With these revisions, the Divorce Act will detail how relocation of children would be governed, which will be helpful for all families, but especially for women who need to move with their children for safety reasons.
Two aspects of Bill C-78 are of particular concern. There is a focus on the use of non-litigation family dispute resolution processes (ie mediation) that does not adequately acknowledge the inappropriateness of such an approach in cases involving persistent coercive control by the abuser. And, the proposed best interests of the child criteria require consideration of the willingness of each parent to support the development and maintenance of the child’s relationship with the other parent. In cases involving family violence, this kind of maximum contact may not be appropriate.
Bill C-78 contains a number of provisions relating to support and enforcement of support orders across the country which are also important and worthy of careful consideration and discussion, but the changes noted above are of the most immediate interest and concern when thinking about situations involving family violence.
This Bill will follow the process of all bills: It will go to committee for hearings after second reading, at which time interested parties will have the opportunity to provide opinions and comments to legislators.
It is important that we participate in this process. While good, the Bill is not perfect, and we need to let lawmakers know what we would like to see changed and why. Equally important, fathers’ rights groups will engage with both the media and the legislative process, to decry any law reform that they think promotes a feminist agenda. We need to ensure that our voices and our expertise are heard over theirs.