Family law catch-up

“In my experience, very little positive comes out of the court process for families. In fact, it’s destructive for them,” says Hickman, also a life bencher at the Law Society of British Columbia. “Court should really be reserved for those maybe five per cent of cases that can’t be resolved any other way.” 

That’s why she was so encouraged by Bill C-78, the federal government’s 190-page answer to longstanding criticism of Canada’s Divorce Act by detractors who say the 32-year-old law is outdated.

The bill proposes to impose a duty on litigants to “try to resolve the matters that may be the subject of an order under this Act” through an out-of-court “family dispute resolution process,” including mediation, negotiation or collaborative law. Meanwhile, lawyers and other legal advisers must encourage their clients to settle matters using the same methods, unless the circumstances of the case render it “clearly” inappropriate. 

Hickman says she hopes the changes will hasten the exit of more separated spouses — or prevent their entry altogether — from an adversarial court system that is better suited to handling the civil disputes for which it was originally designed. 

“The earlier you can get people to look at alternatives to court, before things become too entrenched, the better,” she says. 

The revamp couldn’t come at a better time for Edmonton lawyer Tim Mallett, co-founder of Undo, whose website clickundo.ca aims to guide amicable former partners in Alberta and Ontario through an uncontested divorce.

“This bill really is a signal from the federal government that they acknowledge there is a problem in this area. They’re saying that the court system still needs to exist, but we must find more ways to keep people out of it,” he says. “That’s a mindset that aligns really well with what we’re doing.”

Users of the Undo service input their responses to a variety of questions about income, assets, debts and housing arrangements, allowing them to find a suitable level for an equalization payment and ongoing child or spousal support. After a review by its legal team, Undo turns the agreement into an official divorce application ready for filing in court. 

“It provides autonomy and empowerment to the couple that’s going through the divorce by putting the decisions in their hands,” says Mallett, who practises at Brock Law and is also collaborating with Alberta’s family justice reform initiative. 

“We’re a bit ahead of the curve in this area. It’s been understood here for some time that what we’re putting people through in court is counterproductive,” he adds. 

Laurie Pawlitza, a partner in the family law group at Toronto firm Torkin Manes LLP, characterizes C-78 as a successful catch-up effort by the federal government.

For example, the ADR-inspired language and definitions in C-78 are borrowed from similar provisions in B.C.’s Family Law Act, while the much-vaunted replacement of terms such as “custody” and “access” by more child-focused alternatives such as “parenting orders” and “parenting time” occurred first in Alberta more than a decade ago. 

“It’s been a very long time since I’ve seen a separation agreement that used the words custody or access,” Pawlitza says. “Kudos to them for largely reflecting what’s already happening in the family law bar.” 

But the lack of any fresh ideas or funding in the bill has prompted some of her more skeptical colleagues to remark that C-78’s enthusiastic reception has been “much ado about not very much at all,” Pawlitza says. 

“It’s an artful way of coming up to where other jurisdictions already are, but in a way that hasn’t actually cost them anything,” she says. “As we know, the justice system is a poor cousin to education, health care and others when it comes to budgetary demands on government.” 

Still, Hickman remains optimistic that the bill will make a difference if it can progress through Parliament. She launched the West Coast ADR Law Group, a firm of lawyers, mediators and arbitrators offering out-of-court solutions to divorcing couples, shortly after the passage of B.C.’s new family law regime in 2011.

“There’s definitely been a switch since then. More and more couples are coming to us early on. Some will see a lawyer, but they’re choosing to come to someone like me, in order to intentionally avoid litigation,” she says. “If the rest of Canada sees the shift we have in B.C., then it’s certainly going to be a step in the right direction.” 

In any case, Nicholas Bala, a professor of family law at Queen’s University in Kingston, Ont., says there is value in the symbolic move away from some of the more “archaic” concepts in the current Divorce Act. He will be particularly pleased to see the back of custody and access terminology, which he derides for evoking “proprietary” feelings in parents. 

“If we want to change the practice and culture of family law to focus on less adversarial disputes, then it’s important to recognize the harm of conflict on children and to place the focus on their needs, rather than the rights of parents,” he says. “Words matter.”

Calgary-based family lawyer John-Paul Boyd, who is also the executive director of the Canadian Research Institute for Law and the Family, says more practical measures in C-78 will boost its impact. 

“These changes are really significant. It’s going to be of the same order of magnitude as the introduction of the 1986 Act,” he predicts.

For example, while the current act instructs judges to take into consideration “only the best interests of the child” when making orders for custody, the amendments flesh out the definition by providing a non-exhaustive list of factors for judges to consider when deciding.

In addition, C-78 would require parents to give notice of their intended relocation with a child and establish guidelines for the parties that clarify who bears the burden of proof in different situations. 

Until now, the only guidance lawyers had in these cases was the landmark 1996 Supreme Court of Canada case of Gordon v. Goertz. But Boyd says the decision has steadily lost value as a precedent, with parties using it as authority to support and oppose mobility applications in similar fact situations. 

“It’s been bent into a pretzel,” he says. “I’m glad the government have finally picked up the ball and given us a list of factors to consider, because lawyers will now be able to give their clients a more realistic range of reasonable results.

“When you have no way of saying what the likely result is going to be, it makes negotiation very difficult and funnels people toward trial courts. Judges are probably sick of hearing these cases,” Boyd adds. 

But not everyone is so impressed by C-78. Toronto family lawyer Brian Ludmer, a long-time advocate for the establishment of a presumption of equal shared parenting and a spokesman for the Canadian Association for Equality, says the bill was a “missed opportunity.” 

Kentucky recently passed a law imposing a rebuttable presumption of shared parenting, using wording like a 2014 bill that failed at second reading in Canada’s House of Commons. But Ludmer insists a revival would reduce litigation and improve outcomes for children.

“We need a new paradigm, and this is one that fits the science,” he says. 

Still, Bala remains skeptical and says jurisdictions that try some form of presumed equal shared parenting usually end up backing off. 

“Having both parents involved is usually appropriate, and the bill moves us in that direction, but that doesn’t mean it should be equal,” he says. “Having a presumption also suggests that the focus is on the rights of the parent, as opposed to the needs of the children.”