Law Times

Page 8 February 26, 2018 • Law Times www.lawtimesnews.com Time for archaic Divorce Act to be updated BY MICHAEL MCKIERNAN For Law Times L eaders in the field of fam- ily law say they're hopeful the federal government will finally update the "archaic" Divorce Act. As the law approaches its 33 rd birthday without a major over- haul, Nicholas Bala, a professor of family law at Queen's Univer- sity in Kingston, Ont., says its age is showing, especially compared with developments in provincial and international jurisdictions. "The concepts at the heart of the present Divorce Act are ar- chaic," Bala says. "Although law- yers and judges are able to work around them, it would be a big improvement if we had modern legislation that more closely re- sembles how families and courts actually think about these ques- tions." Bala says Justice Minister Jody Wilson-Raybould's focus has been mainly on criminal law reform since she took office in late 2015. "That's understandable, as there are issues there that cer- tainly need to be addressed, but family law is an area that affects more people. It needs to be ad- dressed, too," he says. However, Bala says he was encouraged by a January meet- ing he and around 30 other family law experts from across Canada attended with Toronto MP Marco Mendicino, Wilson- Raybould's parliamentary sec- retary. "It's an exciting development, and I'm hopeful the government will take action. He seemed to understand the urgency of the situation," Bala adds. The meeting followed a letter from the Canadian Bar Associa- tion's national family law section demanding immediate changes to the Divorce Act. Lawrence Pinsky, the sec- tion's chairman, was one of the attendees. "For many Canadians, the Di- vorce Act is their main gateway to the legal system, so It needs to ref lect the considerable changes that have gone on in society over the last 30 years," says Pinsky, a partner with Taylor McCaffrey LLP in Winnipeg. "Right now, there's a mismatch between what the law says and the way people live, so it needs to be changed sooner rather than later. "The fact we had the meeting shows it's on the federal govern- ment's radar, but getting from there to landing the plane can often take some time and be quite challenging," he adds. Simon Rivet, a spokesman for Justice Canada, said in a state- ment that the federal govern- ment recognizes the difficulties divorce presents for families and believes it is important to en- sure Canada's divorce laws are fair and equitable for the ben- efit of the families and children involved. He pointed out that Raybould-Wilson's mandate letter from the prime minister tasked her with improving the efficiency and effectiveness of the justice system. "This could include the cre- ation of a unified family court, which could offer a single point of contact, simplified rules and a user-friendly environment, making the family justice system more accessible to everyone," Rivet wrote. However, he added, "We are unable to provide spe- cifics on any possible upcoming legislation." According to Rivet, the de- partment has received the CBA's letter and "is considering their views and sharing them with of- ficials." The CBA drew particular at- tention to the Divorce Act's si- lence on the issue of relocation, which it says has led to "incon- sistency in how the law is applied and significant unpredictability." The landmark Supreme Court of Canada case of Gordon v. Goertz, which was decided in 1996, ruled that relocation de- cisions should be based on the "best interests of the child." But family lawyer Andrew Feldstein says the vagueness of the judgment makes it challeng- ing to advise clients on reloca- tion in Ontario, where case law is the only guide. "But if you take jurisdictions like B.C. or Nova Scotia, they have set out a number of factors that courts are supposed to take into account," says Feldstein, founder of Feldstein Family Law Group in Markham, Ont. "That means you can give people a better feeling about their likelihood of success." The CBA submission says in- serting clearer guidance about the best interests test into the Di- vorce Act or embarking on co- ordinated multi-jurisdictional law reform regarding relocation would promote earlier resolu- tion and cut costs for litigants. In addition, the CBA raises its concern about the inadequacy of the Divorce Act when it comes to child support in shared par- enting arrangements, which have grown exponentially since the law was passed over three decades ago. Again, the legislative void is currently filled by a Supreme Court decision, this time in the 2005 case of Contino v. Leonel- li-Contino, when the nation's top court ruled that judges must conduct a full — and what law- yers say is an onerous — analysis using the Child Support Guide- lines. "While courts must retain jurisdiction to determine indi- vidual cases, providing a start- ing framework or formula for child support in shared parent- ing situations would help reduce conf lict, increase stability and predictability, and lower the emotional and financial toll of litigation in this critical area," the CBA letter suggests. Bala says he would also like to see a linguistic revamp for the Act as part of any reforms to do away with terms such as "cus- tody" and "access." "These words evoke a propri- etary if not a penal context," he says, noting that many judges al- ready eschew them in favour of alternatives such as "parenting time." LT FOCUS ON Family Law/Trusts & Estates Law Nicholas Bala says the federal Divorce Act needs to be modernized. FOCUS It's time to rank… THE TOP CIVIL LITIGATION AND CRIMINAL LAW BOUTIQUES To make your picks, complete the survey at canadianlawyermag.com/surveys VOTING IS OPEN UNTIL MARCH 5 Untitled-2 1 2018-01-30 8:21 AM

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