Time for archaic Divorce Act to be updated

Leaders in the field of family law say they’re hopeful the federal government will finally update the “archaic” Divorce Act.

Time for archaic Divorce Act to be updated
Nicholas Bala says the federal Divorce Act needs to be modernized.

Leaders in the field of family law say they’re hopeful the federal government will finally update the “archaic” Divorce Act.

As the law approaches its 33rd birthday without a major overhaul, Nicholas Bala, a professor of family law at Queen’s University 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 archaic,” Bala says. “Although lawyers and judges are able to work around them, it would be a big improvement if we had modern legislation that more closely resembles how families and courts actually think about these questions.”

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 certainly need to be addressed, but family law is an area that affects more people. It needs to be addressed, too,” he says.

However, Bala says he was encouraged by a January meeting he and around 30 other family law experts from across Canada attended with Toronto MP Marco Mendicino, Wilson-Raybould’s parliamentary secretary. 

“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 Association’s national family law section demanding immediate changes to the Divorce Act.

Lawrence Pinsky, the section’s chairman, was one of the attendees.

“For many Canadians, the Divorce Act is their main gateway to the legal system, so It needs to reflect 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 government’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 statement that the federal government recognizes the difficulties divorce presents for families and believes it is important to ensure Canada’s divorce laws are fair and equitable for the benefit 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 creation 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 specifics on any possible upcoming legislation.”

According to Rivet, the department has received the CBA’s letter and “is considering their views and sharing them with officials.”

The CBA drew particular attention to the Divorce Act’s silence on the issue of relocation, which it says has led to “inconsistency 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 decisions should be based on the “best interests of the child.”

But family lawyer Andrew Feldstein says the vagueness of the judgment makes it challenging to advise clients on relocation 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 inserting clearer guidance about the best interests test into the Divorce Act or embarking on co-ordinated multi-jurisdictional law reform regarding relocation would promote earlier resolution 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 parenting 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. Leonelli-Contino, when the nation’s top court ruled that judges must conduct a full — and what lawyers say is an onerous — analysis using the Child Support Guidelines.

“While courts must retain jurisdiction to determine individual cases, providing a starting framework or formula for child support in shared parenting situations would help reduce conflict, 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 “custody” and “access.”

“These words evoke a proprietary if not a penal context,” he says, noting that many judges already eschew them in favour of alternatives such as “parenting time.”

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