Liberals' proposed overhaul of Divorce Act aimed at putting interests of children first

A silhouette of a child holding a teddy bear between two parents. (Getty Images)

The Liberal government is overhauling Canada's federal divorce laws to direct the justice system to put the best interests of children at the centre of decision-making.

Bill C-78, which was tabled Tuesday in the House of Commons, also takes steps to address family violence and child poverty. It's the first major revamp of divorce law in more than 20 years.

The bill adopts neutral terminology, dropping terms like "custody" and "access" in favour of "parenting orders" and "parenting time." The changes aim to put an end to the adversarial win-or-lose approach to legal decisions on parenting arrangements, according to background material from the Department of Justice.

Under the proposed changes, a court would have to consider a specific set of factors to ensure its decisions are made in the interest of serving the child's physical, emotional and psychological safety and wellbeing.

Other factors the courts have to consider under the bill include the nature and strength of a child's relationship with parents, grandparents and other important people in their life, the child's linguistic, cultural and spiritual heritage (including Indigenous heritage), and the child's own views and preferences.

Justice Minister Jody Wilson-Raybould called the bill's introduction a "historical occasion" for family law in Canada and said the changes will make the system less adversarial and more efficient.

"Separation and divorce are stressful enough without considering financial burdens and the emotional pain that can result, especially for children," she said during a news conference on Parliament Hill. "That is why so much of what we are proposing today is promoting the best interests of the child by reducing conflict, addressing family violence and ensuring family support obligations are met."

The background materials provided by the department say there would be no "one-size-fits-all" parenting arrangement under the new legislation. Courts would be required to order the maximum amount of parenting time for each parent that is in the child's best interests — to tailor parenting arrangements to suit each child's specific situation.

Census 2016 found that more than two million children were living in separated or divorced families. More than five million Canadians separated or divorced between 1991 and 2011; of those, 38 per cent had a child with his or her partner at the time.

Other proposed amendments include:

- A new requirement for a parent to provide proper notification of relocation, and new guidelines to help courts decide if it's in the child's best interests and should be allowed. The new framework would provide additional clarification for parents, lawyers and courts to limit litigation.

- A requirement that courts take family violence into account in their decisions — that they assess the severity and impact of the violence and how it could affect future parenting arrangements.

- More tools to establish and enforce child support. The government would, in certain cases, be able to release tax information to help ensure a child support amount is accurate. Only certain people and agencies, like a judge or enforcement program, would be allowed access in order to protect privacy rights.

- Making the family justice system more accessible and efficient by reducing the need for families to go to court, avoiding the need for expensive court costs.

The Canadian Bar Association (CBA) wrote to the minister in December 2017 calling for changes to the Divorce Act, including amendments to give better guidance on relocation issues, child support and terminology.

Lawrence Pinsky, a Manitoba family lawyer and CBA's family law section chair, welcomed the proposed bill but said it's too early to measure its overall impact.

"It will depend on how judges in various jurisdictions interpret the bill ... But overall we see it as positive," he said. "We've been advocating for years that the best interests of the child needs to be the test, that all family law dealing with children has to be seen through the eyes of the child."

But Toronto family lawyer Brian Ludmer, a spokesman for Canadian Association for Equality (CAFE), which advocates for gender equality and runs the Canadian Centre for Men and Families in Toronto, said the bill misses the mark by not including a default assumption that parenting will be shared equally. He said such an assumption would alleviate the "divorce war" mentality that turns one parent against the other and often puts children in the middle.

"This was the opportunity to really solve what really ails the family law system," he said. "It is the answer, and in that sense while some of the changes in this bill are certainly welcome, the big issue has somehow been left behind."