Canadian Bar Association Proposes Amendments to the Divorce Act
The Canadian Bar Association (CBA), which is the largest professional association for lawyers in Canada and bills itself as the “voice of the profession”, has written to the federal Minister of Justice and made recommendations to amend the Divorce Act (the Act) to “better meet the needs and interests of separating and divorced Canadian families”.
The recommendations focus on three specific areas for change:
- Child support in shared parenting situations; and
- Terminology used in the Act.
The CBA further recommended that the “best interests of the child” should remain the foundational principle in establishing post-separation parenting regimes, but that further defining “best interests” would be helpful.
The last time substantive changes were made to the Act was about 30 years ago.
The CBA notes that, currently, there is unpredictability in decisions around post-separation relocation of a parent and child. In most jurisdictions, the law provides only general guidance for such disputes. Relocation decisions must be based on the “best interests of the child” but that provides little clarity. In addition, there is inconsistency in how the law is applied.
The CBA believes that clearer guidance on the “best interests test” and how it applies to relocation cases would:
- Facilitate earlier resolution;
- Promote settlements and reduce costs for litigants;
- Contribute to greater fairness and predictability; and
- Help parents make post-separation plans for their children.
Child Support in Shared Parenting Situations
The CBA notes that shared parenting issues remain a “difficult and thorny issue for many Canadian families” despite the fact that shared parenting orders have increased substantially since the Act was last amended. Divorcing parents must often address child support in shared parenting situations with little guidance from the Act.
The Association recommends that providing a framework, formula, or set of guiding principles for child support in shared parenting situations would help reduce conflict, increase predictability, and lower the emotional and financial toll of disputes in this area of family law.
Guiding principles should include fairness to the parties, fairness between households, reasonable child support amounts, simplicity and clarity, and room for judicial oversight. The overall goal should continue to be advancing the best interests of children by reducing conflict and enhancing stability.
The current approach is much too complicated and results in significant costs for parents.
The CBA notes that the current use of the terms “custody” and “access” is outdated. According to the Association, many other jurisdictions have moved away from using this language and towards more progressive terms reflecting the fact that, most often, parents now both maintain a role in parenting their children following a separation or divorce.
The CBA suggests that the following factors be considered when defining best interests:
- The impact of domestic violence, including factors such as the safety of the child (and others who care for the child), the child’s general well-being, whether the parent who is the abuser is able to care for and meet the needs of the child, and the appropriateness of an order requiring both parents to cooperate on issues pertaining to the child;
- The nature and quality of the relationship of the child, their parents, and any other significant individuals in the child’s extended family (grandparents, aunts, uncles, cousins, etc.);
- The child’s development (physical, emotional, psychological, educational, moral and social);
- The child’s needs (including safety);
- The willingness and ability of each parent to cooperate and communicate about the child, and to facilitate a relationship with the other parent in line with the best interests of the child;
- Each parent’s ability to ensure the appropriate support and resources are in place for a child who may require accommodation to reach their full potential (i.e. in situations where a child has ADHD, FASD, anxiety, or other conditions);
- The child’s heritage and cultural, religious, linguistic and spiritual upbringing.
We will continue to follow developments in this regard and will provide updates as they become available.
To discuss your legal needs with a Windsor divorce lawyer, contact Jason P. Howie. Our family law practice encompasses separation, divorce, child custody and all other family law issues. We serve clients in Windsor, Essex County and throughout the region. Call 519.973.1500 or contact us online.