CBA Statement on Bill C-78

  • May 22, 2018

The Canadian Bar Association welcomes Tuesday’s tabling of Bill C-78, which contains the first substantive changes to be made to Canada’s Divorce Act in 30 years.

The CBA has identified a number of amendments contained in the proposed bill that are in line with recommendations the Association has made over the years, including in December, 2017, with a submission on a private member’s bill dealing with shared parenting and a letter calling for specific changes to the Divorce Act.

This is a large bill that will require further study, but in its initial look at Bill C-78 the CBA identifies three significant areas where the proposed legislation is in line with areas where the Association has long advocated for change:

1. Bill C-78 reaffirms the paramountcy of the “best interests of the child” test, which the CBA has said should remain the fundamental overriding consideration for determining custody and access, and provides a non-exhaustive list of factors to assist with those determinations.

2. Bill C-78 clarifies guidelines about how the “best interests” test applies to the question of relocation, which should lessen the significant frustration parents and their lawyers experience when dealing with this issue.

3. Outdated terminology on custody and access tends to increase conflicts by emphasizing a winner/loser dynamic. Bill C-78 proposes to change the language so that it is focused more on parenting responsibilities than parenting rights.

Other changes that on first reading appear to be in line with CBA advocacy include an emphasis on dispute resolution and early intervention to avoid litigation and court time, more administrative remedies for simpler access to justice, measures to assist unrepresented litigants, and measures that better address situations of family violence.

The CBA is dedicated to support for the rule of law, and improvement in the law and the administration of justice. Some 36,000 lawyers, notaries, law teachers and law students across Canada are members.