New Divorce Act changes focus on out-of-court resolution, interests of child – Boutet in The Lawyer’s Daily

New federal laws requiring family lawyers to “encourage” parting spouses to use mediation or other forms of alternative dispute resolution instead of the courts have come into force.

On March 1, federal Minister of Justice and Attorney General David Lametti announced in a news release that long-awaited amendments to Canada’s Divorce Act took hold as of that day, marking “the first substantive changes to federal family laws in more than 20 years.”

The amendments, originally scheduled to come into force June 1, 2020, but pushed back due to “circumstances related to the COVID-19 pandemic,” focus largely on protecting children from the impacts of long, expensive and tempestuous court proceedings.

According to the release, the amendments are also meant to address family violence and make “the family justice system more accessible and efficient.”

A  backgrounder document aimed at professionals states that “[l]egal advisers will have to encourage clients to use family dispute resolution processes, where appropriate, to attempt to resolve their family law matters.”

An online information page for families backs this up, stating that parting spouses also now have an obligation to try and resolve their legal issues “by using family dispute resolution, if it is appropriate.”

Dispute resolution can include negotiation, collaborative law, mediation and arbitration.

Toronto family lawyer and mediator Nathalie Boutet says the adding of “shall try” into the Act’s language strengthens lawyers’ responsibilities in this regard.

“The language is much stronger, with the use of ‘shall try,’ ” said Boutet. “It is too early to predict how courts will deal with this. Will they postpone court proceedings to send parties to try mediation or collaborative negotiation? It’s certainly going in that direction in Ontario.”

Still, she said, family lawyers “who do not support mediation or do not practise collaborative negotiation are likely to find ways to steer clients away from these processes.”

The amendments also give greater weight to incidents of domestic violence.

A list of family violence factors has been added to the Act “to help courts assess the seriousness of the violence and how it could affect future parenting.” Courts will also “need to consider any other proceedings or orders involving any of the parties” so family court orders do not conflict with orders made by, say, a criminal court.

Boutet calls this a “very important development.”

“In the past, family violence was peripheral if the perpetrator was behaving less aggressively towards the children than towards their spouse. It is hoped that the amendment will place one’s abusive conduct squarely in the discussion around the best interest of children. It will be interesting to see if victims will fight more vigorously than under the previous legislation that did not mention anything about domestic violence.”

According to Statistics Canada’s Family violence in Canada: A statistical profile, 2019, there were 399,846 victims of police-reported violence during that year, 26 per cent of whom were victims at the hands of a family member.

Two-thirds of those who reported being victims of family violence were women. Of the family violence reports that came into police, 31 per cent of incidents involved violence at hands of a current spouse, while 13 per cent of the incidents involved violence from a former spouse.

The amendments also remove the terms “custody” and “access” from the Act and focus on “parenting responsibilities” and “parenting time” and “decision-making responsibilities.”

It also changes some of the rules around the touchy issue of a parent wanting to relocate to another province or country with a child or children.

Also, provincial child support administration services will now be able to “perform some tasks currently left to the courts,” thus “making it faster, less costly and less adversarial to determine or recalculate child support amounts.”

Lametti said the changes were a “a long time coming.”

“We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members,” said Lametti in a statement. “Faced with the challenges presented by the COVID-19 pandemic, we worked hard with our partners to implement these changes, which address family violence and promote the best interests of the child.”

Originally written by Terry Davidson on The Lawyer’s Daily.

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