Law Times

Page 10 November 19, 2018 • Law Times www.lawtimesnews.com New divorce act holds beneficial changes BY MARG. BRUINEMAN For Law Times A modernization of Canada's Divorce Act intended to make the family justice system more efficient and effective could significantly impact some families during the divorce pro- cess, say lawyers. The prospect that family vio- lence will be directly addressed in the updated federal legisla- tion can make it a powerful tool for families, says Toronto fam- ily lawyer Nathalie Boutet of To- ronto firm Boutet Family Law. Family members victimized by a spouse will be able to use the legislation to defend claims to limit the abuser's parenting time, she says, suggesting it may also encourage victims to stand up to abusers as they go through divorce proceedings. "I think that adding it here is a very important statement," says Boutet, whose firm focuses on non-court resolution pro- cesses. "I certainly have cases where there's family violence. And I would be able to say, more strongly now, that this is an im- portant element in your case and it needs to be discussed." Previously, she says, the vic- timized spouse had to prove they were a victim of family vio- lence to demonstrate its impact on family members and their behaviour. Amendments to the Divorce Act, as well as the Family Orders and Agreements Enforcement Assistance Act and the Garnish- ment, Attachment and Pension Diversion Act were introduced in the spring and are wending their way through the legisla- tive process, having undergone a second reading. It is currently before the House of Commons Standing Committee on Justice and Human Rights. In their introduction, the federal government announced that these are the first substantial updates of federal family laws in 20 years. The key objectives are to promote the best interests of the child, address family vio- lence, help reduce child poverty and make Canada's family jus- tice system more accessible and efficient. The amendments are in- tended to streamline some fam- ily justice processes, encourage people to resolve divorce-related disputes out of court and create new rules for parents who wish to relocate with a child after a divorce. The proposed amend- ments include additional tools for enforcing family support obligations and an expansion to unified family courts. The amendments also intro- duce language that many law- yers have already adopted, says Katherine Cooligan, Borden Ladner Gervais LLP's managing partner in Ottawa and a certi- fied specialist in family law. The use of "parenting time" instead of "custody" and "access" is in- tended to make it less adversarial and less territorial. "The bottom line is the intent was to soften the custodial lan- guage with a view to leading to resolution more easily," she says. "Whether or not that's going to make a practical difference, I'm not sure." What Cooligan sees as sig- nificant in the proposed amend- ments is that it introduces, for the first time, a legislated test for mobility cases, when one parent wants to move with the child, she says. The amendments set out who has to prove that the move is in the best interests of chil- dren and legislated the best-in- terests test and the steps on how to get there. "We have been governed by the Supreme Court of Canada case in Gordon v. Goertz and there hasn't been a legislated test," she says, referring to the 1996 deci- sion that established the circum- stances surrounding a proposed move by one parent, focusing on the best interests of the child. Boutet says the change al- lowing judges to access income information from other govern- ment agencies is long overdue and one that will save time and money pursuing information that isn't always made readily ac- cessible by resistant parties. "That's a big victory for ev- erything: The cost to the judi- cial system, access to justice, the speed of determining issues and one of the important aspects for families who want to operate outside of the court system," she says. "I think this is going to have a very significant impact on fami- lies that use mediation or collab- orative negotiation." If one of the divorcing par- ties fails to disclose income in- formation during an alternative dispute resolution approach, the opposing party will have a new negotiating tool, says Boutet, forcing the issue to go to court where that information will like- ly be ordered by a judge. She is also encouraged by the proposed move away from the need to return to court for yearly reviews under child sup- port guidelines in situations where income changes. Instead, there would be an administra- tive framework through which to register income statements, says Boutet. The new system would also encourage people to resolve divorce-related disputes out of court by having lawyers com- municate the options of negoti- ating, using mediation and the collaborative approach to their clients, she says. "For me, as a collaborative lawyer, to understand that law- yers would have to make this process known to their clients is a huge victory," says Boutet. "Collaborative negotiation is a perfect model of non-court ne- gotiation where the lawyers are there supporting the clients dur- ing the negotiation meeting and it's also a commitment to find- ing a resolution without going to court. It's very powerful." Russell Alexander, the prin- cipal of Collaborative Family Lawyers, who is based in Whit- by, Ont., is also encouraged by the initiative for those who are divorcing to look at alternatives to the courts. Although many lawyers now offer those services, he says the options and how they work are not so well known in the general public. Many of the changes to the Divorce Act, including the move away from the language such as sole custody and access, which he describes as fighting words locking people into positions, toward the gentler parenting time has largely been adopted by family lawyers, he says. And the shifting onus when a spouse wants to relocate, he says, is an interesting approach and an area that was in need of clarifi- cation. "It's really child-focused leg- islation," he says. "Ultimately, it's going to be better for families." Ottawa family lawyer and mediator Gil Rumstein says the changes mark a societal shift away from the typical acrimoni- ous and adversarial divorce pro- ceedings. "It' a change in the culture of divorce and refocuses people," he says. LT FOCUS Nathalie Boutet says she's encouraged by changes in the federal Divorce Act. It's really child-focused legislation. Russell Alexander In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more © 2018 Thomson Reuters Canada Limited 00251KJ-A92244-CM Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8617-65203 $185 Hardcover approx. 520 pages May 2018 978-0-7798-8617-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Publication Support Rights and Obligations Under Ontario Family Law Robert M. 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