Bill C-78 – Amendments to Divorce Act (and other legislation) – The Good, The Bad and the somewhat Redundant?

Introduction

In a post on June 1, 2018, I discussed proposed amendments to the Divorce Act that, if passed, would be the first major changes to the current Act since 1985. I recently attended a Family Law Conference, at which Stéphanie M. Cormier, a lawyer at Actus Law in Moncton, New Brunswick (and Chair of the CBA Family Law group) presented in more detail on the amendments to the Divorce Act (and several other Acts) proposed in Bill-C78. As of April  11, 2019, this bill was in its second reading in the Senate. The focus of this post will be solely on the proposed amendments to the Divorce Act, as these changes are voluminous enough to generate significant discussion. Also, I will not go through each and every amendment in detail. Should you wish to read the Bill in its entirety, you can visit the link here to the House of Commons website version of same. Also, here is a link to the current status of this bill.

Positive Amendments

Firstly, I wish to note that I maintain the same opinions expressed in my June 1, 2018 post that the proposed amendments to the Divorce Act are mostly positive. For example, the amendments include adding a non-exhaustive list of criteria with respect to best interests of the child. This is a positive change in and of itself, as family law practitioners (in New Brunswick anyway) have traditionally had to utilize the criteria contained in the caselaw and in the Family Services Act. Oddly enough, previous versions of the Divorce Act did not include a list of criteria for best interests of the child, even though all decisions regarding care and access to children is based on same. In addition, the proposed amendments would replace terminology related to “custody ” and “access” with “parenting” time. This is a positive change, as terms referring to custody (i.e. “joint” vs. “shared” custody in particular) confuse many people in my experience and these loaded terms often create unnecessary division between separating parents. Moreover, persons other than spouses may apply for contact orders with the children. This is a positive amendment, which follows recent trends in provincial legislation allowing grandparents and other persons to apply for custody or access to children. (for example, see previous posts here , here and here.)

In addition, the amended Act includes provisions to assist courts with divorces that involve family violence. This recognizes an unfortunate pattern in recent years of increased instances of domestic violence in family law disputes.

There are also provisions in the amended Act that provides a framework for dealing with jurisdiction, where a court in one province is dealing with a parent that removes a child from that province.

Questionable Amendments

While there are many positive amendments to the Act, there are some amendments that simply codify what the common law already is. For example, there are new provisions dealing with the duty of legal advisers to discuss reconciliation and alternatives to court with clients. Most family lawyers likely already discuss these options with their clients. Also, there are new provisions dealing with relocating with a child of marriage. These amendments require a parent wishing to move with a child to notify the other parent “in writing at least 60 days before the expected date of the proposed relocation and set out”:

(a) the expected date of the relocation;
(b) the address of the new place of residence and contact information of the person or child, as the case may be; and
(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised.

If the child spends the majority of time with the moving parent, then the onus shifts to the responding parent to establish why relocation would not be in the best interests of the child. At paragraphs 26-48 in Gordon v. Goertz, [1996] 2 SCR 27, 1996 CanLII 191 (SCC), the preeminent case regarding mobility in Canada, the Supreme Court dealt with arguments for and against a presumption in favour of the moving parent. On the one hand, the Court cited the following arguments in favour of this presumption:

  1. the principal residence of the child is a normal incident of custody and the court should accordingly defer to the custodial parent (para 34);
  2. the personal freedom of the custodial parent requires that he or she be permitted to decide where to live (para 34);
  3.  would make outcomes of variation applications more predictable (para 34);

The Court deals with each of these arguments in succession and ultimately concludes that if Parliament wished that decisions would be made in this way, it would have codified same in the Divorce Act (as it has now): “Had Parliament wished to impose general rules at the expense of individual justice, it could have done so.” (para 38). The Court further notes at paragraph 38 that a presumption in favour of a custodial parent would do little to minimize conflict. Indeed, it may do the opposite and increase conflict.

Between paragraphs 40-48, the Court considered arguments against the presumption in favour of custodial parents in mobility cases:

  1. the child’s best interests may no longer be protected or advanced through the earlier order (para 40);
  2.  presumption should as matter of principle be introduced in all matters involving variation? (para 41);
  3.  Parliament placed a duty on deciding best interests of children on the judge, not the custodial parent (para 42);
  4.  could render inquiry more technical and adversarial than necessary (para 43);
  5.  Most importantly, presumption could impair the inquiry into the best interests of the child … in favour of parent’s wishes (para 44);

This final argument against the presumption is the most concerning, as the proposed amendments may unnecessarily complicate mobility cases by focussing too much attention on the parents rather than the children. As the Supreme Court stated in Goertz, supra: “But to begin from the premise that one parent has the prima facie right to take the child where he or she wishes may unduly deflect the focus from the child to its parents.” 

Conclusions

Time will only tell what kind of impact these amendments will have, or whether they are simply codifying trends that already exist in cases across Canada. However, as with all legislation, it will be incumbent on lawyers to pay attention to how these changes are interpreted and implemented in various jurisdictions across the country. These amendments appear to be a reality and are likely to come into force in the not-too-distant future. Therefore, we will continue to review the proposed amendments and would be happy to answer any questions you may have regarding same.

 

First Major Changes to Divorce Act since 1985

On May 22, 2018 the Federal Government introduced Bill C-78, which proposes changes to the Divorce Act. The proposed amendment would be the first significant revision to the Divorce Act since its enactment in 1985.

The changes to the Divorce Act are designed to implement a more “child-focused” approach to family law disputes, rather than an adversarial approach. By removing language like “custody” and “access,” and encouraging dispute resolution, the Act is designed to better promote the interests of the child.

The Minister of Justice, Jody Wilson-Raybould, summarizes the changes as follows:

(a) replace terminology related to custody and access with terminology related to parenting;

(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;

(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;

(d) introduce measures to assist the courts in addressing family violence;

(e) establish a framework for the relocation of a child; and

(f) simplify certain processes, including those related to family support obligations.

If this Bill passes in the House of Commons, the legislation will likely come into force in 2019.

Thus far, most family law practitioners and commentators view the proposed changes positively. However, some state the impact of these amendments will depend on how courts across Canada would apply the new provisions. We note that the common-law in Canada already requires the courts to apply a “child-centric” test and only consider the “best interests of the child” when making decisions regarding custody and access (or “parenting time” rather) (Young v. Young, [1993] S.C.J. No. 112). However, the proposed changes to the terminology should help reduce the “win/lose” mentality of many individuals involved in family law disputes.

To view Bill C-78 in its entirety, check out the link below:

https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading

To view the Divorce Act (1985), check out the link below:

https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html

Child Support: Can I just pay the child directly?

Not a week goes by that I do not hear the question: “can I pay child support directly to him/her (the child)?”. This question is usually followed by a discussion of why he or she (the other parent) is not spending the child support on the child. In this parent’s theory, the other parent is using the child support funds to go on extravagant trips and other luxury items that are not related to the child’s care. Hence, “why can’t I just pay him/her directly? Then atleast I will know that the funds are going toward the intended purpose.”

The answer to this question is that courts rarely allow child support payments to be made directly to a child; it is the exception rather than the rule. Courts in Canada have stated that compelling reasons must exist for payments to be made directly to a child. In Mylrea v. Benoit, 2003 CanLII 1975 (ON SC), the Ontario Superior Court responded as follows to a father’s request to set up a trust to pay child support directly to the children:

[31]      Mr. Mylrea requests the right to limit the amount of child support that goes directly to Ms. Benoit to the sum of $248.00 each month, with the balance to be paid into a trust account for the benefit of the children.  Again, even if I were inclined to do that – and I am not in the least – authority prevents me from doing so.  In Simon v. Simon (2000) 1999 CanLII 3818 (ON CA), 1 RFL (5th) 119 (Ont.C.A.), MacPherson, J.A., in delivering the judgment of the court, said this (at page 134 of the Report):

 ——-

It may be that in some cases a court imposed trust to secure funds for a child’s future care and education would be appropriate.  However, in my view, absent a good reason for imposing a trust, the court should not do so.  The presumption should be that a custodial parent will do his or her best to provide for both the child’s immediate needs and his or her future care and education.  Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent) I see no reason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody.

                                                                (emphasis added)

In L. B. L. v. S. B., 2010 NBQB 339 (CanLII), Justice Walsh of the Court of Queen’s Bench of New Brunswick dealt with a situation where the payor mother was attempting to create her own system of child support payments to her child on the grounds that the father wasted funds meant for the child:

[65]      On the totality of the evidence it is clear that the mother cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment. By any means, by any claim, the mother has now sought to create her own system, to permit her to directly support or reward the children for her own purposes, to ignore the law’s requirements. The receipted claims she made in this case and the claims she has filed with Revenue Canada constitute clear evidence of her present approach. The irony is that the vast majority of the arrears that were terminated in May 2009 were for a period when the mother was having little, if any, contact with the children, and the children would appear to have forever lost this money owed to them (See: Beninger v. Beninger 2009 BCCA 145 (CanLII)).

[66]      In these circumstances I apply Swiderski v. Dussault:

While D.B.S. [v. S.R.G. et. al., 2006 SCC 37 (CanLII)] at para. 109, opens the theoretical possibility that the payor parent can justify himself by showing total payments equivalent to the Guidelines amounts, this, I suggest, presupposes candour, openness and satisfactory proof of the amounts. None is present in this case.

There are at least two reasons why payors should not be able to create their own support regimes. The first is that the receiving parent usually has custody, and must be the one to make decisions about the child’s expenditures. A private unilateral scheme operated by the payor can be a method of control which undermines the authority of the custodial parent. The second reason is that the payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record-keeping …

(2009 BCCA 461 (CanLII),at paras. 38, 39) (emphasis added)

These cases stand for the proposition that child support is meant to maintain a child’s permanent home and to cover the incidentals that a custodial parent provides to a child (see Armaz v. van Erp, 2000 CanLII 22585 (ON SC) ). I often explain it this way to clients: just think of how much you might spend on the children or other incidentals if you were still living in the same home with the other parent. Wouldn’t it likely be more than you are spending right now? And regardless of whether these funds go directly toward the children or not, there are certain expenses the other parent must pay to keep the children’s quality of life similar to what they would have experienced if you were living with the children, correct?

As stated earlier, there are some exceptions to this rule, such as when the parents’ relationship is extremely acrimonious and the child lives away at school (see B. (T.T.) v. D. (P.H.), 2014 NBQB 164).

Have you taken the “For the Sake of the Children” course?

Separation and divorce can be painful and confusing for all parties involved. This is especially true for the children of separating couples.

It is important to recognize that you are not the only one hurting while you are going through a divorce. Children often get caught up in arguments and discussions between parents. For the Sake of the Children offers an informative program that helps to educate separating parents about the impact of certain actions on their children. The program reminds us that children are aware of more than we sometimes realize and that it can be very difficult for them to process painful and confusing information, in a healthy way, without the proper support and guidance. In addition, it can be difficult for parents to avoid the temptation to involve their children in their disagreements. For the Sake of the Children can help you to put your differences aside and focus on what really matters–the children!

In Manitoba, it is mandatory for separating parents seeking custody agreements to attend a similar educational program. Here in New Brunswick, however, the program is offered for free to any interested party, but it is not mandatory.

I have personally seen how parents justify using their children as pawns in their battle against eachother. It is not pretty and will ultimately not endear you to a Judge. Remember the words of Ontario Judge Alex Pazaratz in a previous post here.

See below to view the instructional videos shown during the For the Sake of the Children program:

Children: The Experts on Divorce (15 minutes)

https://vimeo.com/11106924

Divorce and Separation: Legal Considerations (19:44 minutes)

https://vimeo.com/11106951

Vignette #1:  Miguel (The Messenger) (7 :27 min.)

https://vimeo.com/10556768

Vignette #2: Nathan (The Exchange) (3 :00 min.)

https://vimeo.com/10556790

Vignette #3: Denise (The Haircut) (6 :39 min.)

https://vimeo.com/10556698

Vignette #4: Jessie (Mom’s house – Dad’s house) (9:41 min.)

https://vimeo.com/10556748

For more information, or to register for the program, check out the following links:

 

For discussion:

  1. Should For the Sake of the Children or a similar program be made mandatory for parents who wish to separate in New Brunswick?
  2. Can you think of any issues that may arise with requiring all parents to attend the program before separating and implementing custodial agreements?

 

 

 

 

Do you know about the Family Law NB website?

1. Access to Justice in Canada

Access to justice is a serious problem in Canada for several reasons:

1. many people cannot afford legal services;

2. not enough judges;

3. not enough courthouses;

4. need for streamlining of many legal processes.

See for example, Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil and Family Justice: A Roadmap for Change”, online: (October 2013) Canadian Forum on Civil Justice <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>

2. PLEIS Family Law NB Website 

One way of increasing access to justice is the use of “self-help” resources and websites, which provide information and step-by-step guides on completing court forms and how to navigate the judicial system. One of my favorite such websites is the Public Legal Education and Information Service of New Brunswick (PLEIS) Website, which houses a plethora of useful information on various areas of the law. Here is a link to PLEIS’ main page. In addition to the links on the main page, PLEIS has a website dedicated to family law information. Here  is a link to the PLEIS family law page. This website has “how-to” guides on filling out Court forms, videos from experienced family law practitioners and information about training sessions and courses available in your area. I have presented at a few of these sessions and bumped into course attendees years later, who mentioned how helpful they found the information.

While websites like the PLEIS website and the Family Law NB website should not be a complete substitute for competent legal advice, they may help you to gather information and narrow down issues before speaking to a lawyer. Also, I have had people attend my office with some of their divorce forms already filled out. This saves them time and money because our office staff can review these documents and make suggestions for revisions without having to start from scratch.

PLEIS Family Law

3. Social Media Options

I am a big believer in social media. If used correctly, one can personalize the information taken in and keep up to date on current events. I would highly recommend anyone interested in learning about Family Law (or any other area for that matter) should follow PLEIS on Facebook and Twitter for courses in your area and general information. Also, take a look around their website, as it is truly a wealth of information to get you started!

 

Top 5 Myths about Family Law disputes

  1. Myth: Behaviour of the other person matters in a divorce hearing as to whether your divorce is granted.

Response: No. Since the June 1, 1986 amendments to the Divorce Act, the sole criterion for divorce is “marriage breakdown.” Divorces are now described as “no fault” in Canada.

  1. Myth: If I do not consult a lawyer and do not respond to legal papers for long enough, the problems will go away.

Response:  False. I often use the analogy that legal issues are like your car. When your change oil light comes on, you can choose to immediately take your car to the shop to get an oil change. Better yet, you may wish to schedule regular maintenance. If you do so, the costs are usually less and the issues are easier to manage. If you disregard your car’s oil change light for too long (I may have some experience in this department), it will likely cause issues with the transmission  and you will end up costing yourself far more time and money. Similarly, legal issues (especially family law issues), never go away. If you owe child support today, you will end up owing more later.

  1. Myth: If I embarrass my (soon to be) former spouse, I can get more out of the divorce.

Response: False. Remember my post here on a case in Ontario, where the judge blasted a couple for spending $500,000 combined fighting with each other about custody issues. Think about that for a moment. $500,000! These were not extremely wealthy people. I believe one was a police officer. This kind of fighting and embarrassment did no one any good.

  1. Myth: I have to go to Court to get what I want.

Response:  False. There are many options available to divorcing couples that can be more cost-efficient, rewarding and effective than court. You may choose to participate in mediation. I have seen this work extremely well and both parties walked away with their sanity and their relationships with their children were strengthened. You may choose to work with collaborative law lawyers, who can bring both parties to the table to ensure that each person’s interests are discussed and solutions are reached that reflect what each person wants out of the divorce.

  1. Myth: Whether you pay child support depends on whether you get access to a child (for the payor) and whether you grant access to the other parent depends on whether they are paying child support.

Response: False. For the most part, child support and custody and access have nothing to do with each other under the Divorce Act, the provincial legislation and the Federal Child Support Guidelines. The exception to this rule is that the amount of child support payable can change depending on whether the access parent has access to a child over 40% of the time over a year pursuant to section 9 of the Federal Child Support Guidelines. Conversely, whether someone pays child support or not should not determine whether they are granted access to their children. I know it’s hard to grant access to someone who doesn’t want to be responsible for his/her child, but you are only hurting the child when you deny access for this reason!

As always, these posts are strictly for educational/information purposes only and do not constitute legal advice. Please consult our Website Disclaimer regarding terms of use and representations. Should you have any specific questions about your situation, please contact us.