MenuUpdated information booklets on amended federal divorce laws and how they apply to separation, shared parenting, family violence and putting kids first will remind lawyers to help parting spouses find “peaceful” and “workable solutions” to disputes, says a legal mind involved with the project.
Last year, the Justice Canada updated a trio of publicly available information booklets to reflect a series of significant amendments made to the country’s Divorce Act — the first substantive changes made to the legislation in more than 20 years.
The amendments, which came into force March 1, 2021, require family lawyers to “encourage” separating spouses to try alternative dispute resolution before turning to the courts, place stronger emphasis on the best interests of children and address coercive and controlling behaviour along with the more traditional forms of family violence.
The changes also adjusted the Act’s language by removing the terms “custody” and “access” and instead focusing on “parenting responsibilities,” “parenting time” and “decision-making responsibilities.”
The first booklet, Making Plans: A guide to parenting arrangements after separation or divorce, is an 86-page guide on separation and divorce, the impacts on children and the importance of elevating the best interests of the children involved.
Making Plans, which a government spokesperson confirmed was originally published in 2013, covers subjects such as talking to children about divorce; protecting kids from conflict and game playing; developing parenting arrangements; seeking legal advice; and how a lawyer can assist in the dispute resolution process.
The second, originally published in 2006 and titled the Federal Child Support Guidelines: Step-By-Step, enables parents to determine child support by using worksheets to calculate income, determine any “special” and “extraordinary” expenses and “compare living standards” as a way of avoiding undue hardship.
The third, first published in 2007 and titled What Happens Next? Information for Kids About Separation and Divorce, is a kid-friendly guide that uses scenarios and storylines to describe the divorce process, as well as to explore the issues of when a parent moves out of the family home and when there are instances of family violence.
East Coast lawyer Shelley Hounsell-Gray, who is on the executive of the Canadian Bar Association’s Family Law Section, sat on the project’s advisory committee and provided Justice Canada feedback on the updates to the booklets.
“The reason why they are helpful for lawyers is because they remind us about the fact that family cases are quite different,” said Hounsell-Gray, a lawyer with Blackburn Law in Bedford, N.S. “They are about adults and children trying to figure out a path forward, and so it’s not about a win or lose situation; it’s about finding a peaceful solution and a workable solution so that whatever the outcome it, it will be long-lasting for this family.
“The first booklet, Making Plans, really identifies the feelings that are experienced by the adults involved, and then the children involved, because we often are not aware of — or are not mindful of — [the child’s perspective]. The child’s perspective is different.”
Hounsell-Gray said the booklet on child support assists in detangling a complex part of the process. She also noted the inclusion of an online calculation tool.
“When parents have a primary care situation, it’s really easy: You use the [online] tool, you punch in your … income, the number of children you have, the province you reside in, and it generates a number. What is tricky is if you have a shared time arrangement … or you have a business or an incorporated company or you receive dividend income. … or when you have income determination issues or when you have a number of extra expenses you would like to have the other parent share. This booklet tries to explain in plain language, one, how to determine income when you have alternate income sources and, two, how to deal with the special or extraordinary expenses on top of the regular table amount that should be paid.”
But one area where clarity is still needed, she said, is around what is currently a patchwork in Canada of what should be considered special or extraordinary expenses — also known as section 7 expenses in the Federal Child Support Guidelines.
“We do need more guidance. It’s not that it is missing [in the booklets], it’s just the law needs some consideration on the section 7 expenses. There is a lot of disparity across Canada on what is a section 7 expense. The [federal] law provides the guidelines and a statement, but there are a lot of regional differences … as to what is considered a section 7 expense and what isn’t.”
For example, some provinces consider school supplies as a section 7 expense, while others do not. A cell phone bill would be another example.
Toronto family lawyer and mediator Nathalie Boutet says she is generally quite happy with the updated booklets. However, when it came to the first one, Making Plans, Boutet questioned why mediation was not mentioned sooner as an alternative during the description of the role of the court. She also questioned why collaboration was not more prominent in the section that discusses seeking legal advice.
She also said the booklet on child support could have provided more guidance when it comes to what constitutes shared parenting.
“It is extremely complex to count the time and the document does not provide any guidance. It’s probably wise considering this is a minefield,” said Boutet.
Originally written by Terry Davidson on The Lawyer’s Daily.