Law Times

Law Times • may 28, 2018 Page 3 www.lawtimesnews.com New family law amendments focus on rights of the child BY ELIZABETH RAYMER For Law Times T he federal government introduced new family law legislation that in- troduces the first signif- icant changes to the Divorce Act in 20 years and is more focused on the best interests of the child. Bill C-78 passed first reading in the House of Commons on May 21. It would eliminate terms such as "custody" and "access" and re- place them with others such as "parenting orders" and "parent- ing time." The bill would amend the Divorce Act, the Family Or- ders and Agreements Enforce- ment Assistance Act and the Garnishment, Attachment and Pension Diversion Act. The legislation also includes relocation guidelines — when divorced parents want to relo- cate to another jurisdiction, at a remove from the other custodial parent — with a shifting onus depending on the child care ar- rangements pending the relo- cation, and, parents may be re- quired to attend a family dispute resolution process. "It's a very child-focused bill, and so it should be," says Philip Epstein, a senior partner in fam- ily law firm Epstein Cole LLP in Toronto. "The [family law] bar has long supported getting rid of the terms 'custody' and 'access' and has long been in favour of relocation guidelines. "I think [the bill represents] a growing recognition that when- ever the legislation being drafted is affecting children, it has to fo- cus on the rights of children, not of parents," Epstein says. "So, you set out the criteria for best interests of the child and make it clear that family violence is a significant factor in establish- ing best interests, as is friendly relations between parents." Bill C-78 is clear that family violence and its impact will be a key factor in determining the best interests of children. Under "Best Interests of the Child," the bill sets out a list of factors to be considered by courts in cus- tody disputes that include "(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of mak- ing an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child." Absent consent, courts will now be required to make par- enting orders, allocate parenting time and allocate decision-mak- ing responsibilities in areas of a child's care and well-being such as health, education and extra- curricular activities, Epstein says. "Again, it's very child focused, and tends to get away from win/ lose" scenarios for the family, he adds. Jonathan Richardson, a part- ner with Augustine Bater Binks LLP in Ottawa, says he's pleased with the proposed changes. "These changes will start to ref lect the realities of parents seeking a divorce especially with respect to their children. The change in language from cus- tody and access, which are often used interchangeably by parents despite having very different meanings, to parenting orders and parenting time will hope- fully reduce confusion and re- move some of the enmity from family proceedings," he says. The bill also creates duties for parties and legal advisers to encourage the use of family dis- pute resolution processes, and it will give the court the power to order mediation, "but only in those provinces that now permit such orders, such as British Co- lumbia" and not Ontario, says Epstein. Richardson says he is in favour of a shift where the court "will now have the authority to order parties to attempt alternative dis- pute resolution proceedings." "It often seems as though parties in family proceedings litigate for the sake of a 'win' or will resume litigation if they did not 'win' the first time around," says Richardson. "Moving some cases, and even high-conf lict cases, into alternative dispute proceedings may encourage parties to co- operate and work together in the best interests of the children." What to do in the circum- stances of proposed parental relocation has been a controver- sial issue, but the new guidelines will create a shifting onus, says Epstein. "If you have primary care of the child, the onus is on the oth- er parent" or the objector to give reasons for their objections to the proposed relocation. How- ever, Epstein says, "If you have equal custody, the onus is on the person relocating" to justify the relocation. The bill does not pro- mote joint parenting, however. "I think those who have been clamouring for family law re- form for more than 20 years, par- ticularly fathers' rights groups, which argue for joint custody, are not going to see that in the bill," says Epstein. Neither the government nor a fair majority of the family law bar support that, and in the United States, he adds, many jurisdictions that had moved toward a presumption of joint custody have since abandoned it, he notes. Richardson says the bill con- tains "the creation of guidelines for mobility cases," where one spouse wants to move away with the children from the jurisdic- tion they're in. He says he's hope- ful the guidelines "will hopefully reduce the confusion and allow for clearer adjudication in these cases." The bill will next go to sec- ond reading and, assuming it is eventually passed by the House of Commons and the Senate, the amended legislation is expected to come into force in 2019. LT — with files from Gabrielle Giroday NEWS Powered by • Writing for Digital Channels • Harnessing the Digital Medium • Integrated Marketing • The Age of Analytics • Using Social Media to Gain a Competitive Advantage REGISTER NOW AND SAVE 15% JUNE 12 | TORONTO www.legalmarketingmasterclass.com Climb higher with digital marketing Your clients are online and they're increasingly social. To grow your firm you need to build and harness your own personal brand and maximize traffic to your digital assets. Untitled-3 1 2018-05-22 3:28 PM Toronto family law lawyer Philip Epstein says the family law bar has long sup- ported getting rid of the terms 'custody' and 'access.'

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