Canadian families will soon benefit from Parliament’s long-overdue overhaul of the Canada Divorce Act under Bill C-78. Although our fellow Canadians to the east may not realize it, these reforms were driven by progressive efforts on the part of the Alberta legislature.
The federal Divorce Act governs the adjudication of parenting disputes between married parents. Provincial legislation such as the Alberta Family Law Act governs parenting disputes for common-law partners and other unmarried persons. Although it is possible for married persons to proceed under the Alberta Family Law Act, their parenting disputes are typically decided under the Divorce Act.
Central to these upcoming amendments are much-needed changes to the way we discuss children and parenting disputes. In these emotionally charged matters, the out-dated and problematic terms “custody” and “access” are easily misinterpreted by litigants and are often improperly understood to connote possession and ownership. They also reinforce a winner/loser mentality, where the “winner” is the custodial parent and the “loser” is the access parent. This can fuel unnecessary conflict and cause litigants to lose sight of what is truly important: the children’s best interests.
Bill C-78 would replace these potentially misleading terms with concepts like “parenting time” and “decision-making responsibility”, which are intended to foster a child-centred focus in the adjudication of parenting disputes. It will also outline a list of criteria for judges to consider in deciding what parenting arrangements will be in the child’s best interests, such as the child’s age and stage of development, the nature and strength of the child’s relationship with other family members, each parent’s willingness to support the child’s relationship with the other parent, the history of the care of the child, the child’s views and preferences, the child’s cultural, linguistic, and religious heritage, and the impact of any family violence. The current Divorce Act does not currently include a list of factors to consider in determining what is in the best interests of the child in a particular case.
These anticipated amendments reflect what Alberta has had in place for years. The Alberta Family Law Act came into force on October 1, 2005, replacing terms of “access” and “custody” with guardianship and parenting orders. It also outlines the criteria for judges to consider when determining what parenting arrangements are in the child’s best interests – the new Divorce Act will mirror these considerations. The British Columbia Family Law Act, enacted on November 23, 2011, incorporated similarly progressive reforms.
As the first province to adopt such changes, Alberta has provided Ottawa with an example of progressive family law reform. Most lawyers in Alberta believe the new terminology facilitates collaboration and better reflects current thinking about children and families. Hopefully divorcing parents across Canada will similarly benefit from the upcoming Divorce Act amendments.
In an era of increasing tensions between Alberta and our federal government, it is noteworthy to see Ottawa following Alberta’s lead on these issues. Bill C-78 completed its second reading in the Senate on April 11, 2019 and could become law later this year.