Exploring the Divorce Act

Male: This is The Every Lawyer, presented by the Canadian Bar Association.

Marlisse Silver Sweeney: Welcome to The Every Lawyer, a Canadian Bar Association podcast. I'm your host, Marlisse Silver Sweeney. We are still recording in quarantine, so please excuse any sound or technical issues. We are doing our very best, and we hope that you are staying safe and healthy under these trying conditions.

Canadian spouses have been quarantining since mid March. And if we’re learning from China, then our divorce rates are about to spike. Bloomberg reports China’s divorce filings skyrocketed since the country eased its lockdown.

We’re starting to ease restrictions here too in Canada, but to complicate matters, our Divorce Act is set to have sweeping changes when Bill C-78 comes into effect. The implementation date of these changes were on July 1st, but they’ve recently been put on hold because of the COVID-19 situation.

The objectives of the changes are simple. Promote the best interests of the child, focus on family violence prevention, reduce poverty, and increase access to justice. But they’re really going to change how family law is practiced in Canada, and that’s what we’re going to talk about today with our guests.

Melanie Del Rizzo has a broad legal practice which includes family law in St. John’s, Newfoundland. She was honoured with the Queen’s Counsel designation last year. She’s a certified mediator and was past chair of the National Family Law Section of the CBA.

Erin Brook is a formal federal prosecutor who specializes now in family law out of Nanaimo, British Columbia. She’s currently the Table Executive Member of the Family Law Section of the CBA’s National Organization.

Thank you both so much for speaking with me today. There’s a lot for me and for our listeners to learn about how the practice of family law is changing across the country. I'm going to focus on big-picture changes that would be pertinent to any lawyer in the country no matter what they practice, not just family lawyers. But for people who want to learn all the particulars of the changes to the legislation, please check out our webinar on the issue. And you can find that on CBA.org/divorceact.

Thank you both so much for being here with me today.

Melanie Del Rizzo: Thank you for having us.

Marlisse Silver Sweeney: There’s a lot of changes that we have to talk about, but the first one I wanted to ask you about was the fact that there are some major terminology changes coming our way with the Divorce Act, and I understand that the terms custody and access are both out. What are they being replaced with and why? Melanie, why don’t we go to you first, and then Erin, we’ll get you to comment on anything else.

Melanie Del Rizzo: So the terminology that we had for custody and access prior to this really started in a more proprietary idea about children in my view. So you know, who has the custody of the children seemed like who owns the children. So now they’ve changed those sorts of terminology to be more along the lines of who exercises parenting time at what time. Like who is actually parenting the children at any given time? So you’re not sort of prioritizing one parent over another, just dividing up the parenting time.

And similarly, the idea then for decision making – which we all called sole custody or joint custody and it was very confusing for people, because people think of custody as being where the children spend the time – is now being changed to decision making ability. So, who makes the decisions about the children? And who makes what kinds of decisions about the children? So maybe one parent could be making a decision about health for the child and another parent could be making the decisions about schooling or some other major decisions that are being made.

So I think it more accurately reflects what’s going on in Canadian society and what’s happening in Canadian families when parents separate. And it really starts people off, instead of fighting about the children, deciding what parenting schedule and how we divide the children’s time rather than who gets custody and then who is the access parent, which is really not our focus.

Marlisse Silver Sweeney: Oh interesting, OK. And Erin, do you have anything – Melanie gave us a good rundown, but do you have anything to add about how you expect that terminology to play out now in practice?

Erin Brook: Well, in British Columbia we’ve had language similar to what the Divorce Act is bringing in regarding parenting arrangements. So we’ve had the privilege of working with this less-possessive style of language for some time. And what I've noticed in practice, at least with my files in any event, is that the families really are now looking at what is the actual practical realities of our home.

We’re not talking about sort of this ownership of a child or some concept that one parent has that right to own the children and provide permissive access to the other parent, but rather, we’re talking about what sort of a schedule works for the children, works for that family. And when we talk about decision-making responsibilities we’re also then looking at which parent has the capacity, the ability and the practical ability to actually make those decisions? Are they away for work? Are they home? Are they ones that have that information?

So we’re actually seeing it be a more useful tool in structuring child-focused parenting arrangements rather than parents having sort of this competitive battle about who is the actual parent and has the right to have custody over them.

Marlisse Silver Sweeney: It really sounds a lot more positive doesn’t it?

Erin Brook: It does. I found that it’s, just in general, it has less combative style of language to it right off the get-go.

Marlisse Silver Sweeney: Yeah.

Melanie Del Rizzo: Right. And a lot of the provincial legislation that we have, or the provincial – I should say the courts deal with the terminology changes differently. Certainly in our courts as well, we have been using this kind of language for a number of years, even though it really isn't reflected in either of our legislation.

Marlisse Silver Sweeney: OK, so this is really bringing federally and federal legislation up to speed is what we’re seeing in many provinces.

Melanie Del Rizzo: Yeah.

Marlisse Silver Sweeney: So something that you both mentioned in your answer about the terminology changes was focusing on the child and what’s in the best interest of the child. And I understand that another major change coming to the Divorce Act is this focus, and it is enhancing a look at what is most important for the children. This includes giving criteria to parents about what the court would actually be considering in this analysis, which seems like a pretty important thing. What do we need to understand here? What does this criteria look like? Erin, why don’t we start with you on this one?

Erin Brook: Right. So under the Divorce Act we’re looking at the court must be giving primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing. So what that does is it really breaks out factors for the court to consider. And they’ve also really got to look at the family violence considerations that impact children. They’ve broadened the perspective to look at really how can we make sure that orders that we’re making about children are actually focused on what the children need and what’s in their best interest rather than the wants or desires of the parents.

Marlisse Silver Sweeney: OK. And sorry, forgive my ignorance, but are these new changes? Or is it just more of a focus than previously?

Erin Brook: I would characterize it as an expansion and a more detailed characteristic of what we should be looking at and what the courts should be looking at when crafting orders that pertain to children.

Melanie Del Rizzo: I can jump in on that as well and say the issue with respect to the criteria – they have a list of criteria under the best interest in the Divorce Act now – a lot of those criteria are similar to the criteria in the Children’s Law Act or whatever the appropriate legislative name is in each province. And they have been considered in a lot of provinces in divorce act applications as well as applications where the parents were not married.

But this is a very exhaustive list. It really codifies the focus as being only the best interest of the children. And it actually states that the overarching principal is only the children’s best interest, which again takes the focus away from a rights-based approach – a mother’s rights-based approach or a father’s rights-based approach – and really focuses on the rights of the child to be in the best parenting arrangement for that particular child, rather than discussing what rights parents have over the children’s time.

Marlisse Silver Sweeney: OK. And you’ve both mentioned addition of criteria; I know, it sounds like it’s a long list. Can you give me an example or two of some of the criteria that the Divorce Act now sets out?

Melanie Del Rizzo: I can summarize a few and Erin can I'm sure do a few as well. So, you know you need to consider the child’s needs, the child’s age, the stage of development of the child, the need of the child having a stable home life, again, the strength of the relationships that the child had with family members in discussing this, the spouses’ willingness to foster the development of the child with another one.

They also consider Indigenous heritages as a factor in this list as being able to consider that and foster that, and I think that’s very important. They look at civil and criminal proceedings that are involved as well with the parents and consider family violence, as Erin mentioned. And then they also include a very expansive definition of family violence that includes coercive control, financial control and other things that often are not considered.

And so it’s not just physical violence, it’s emotional abuse and other things; they have a very expansive definition. So it is a big C change. Even though, you know, a lot of the courts have been considering some of these, I think it’s really focusing on the very important matters that will factor into where a child should be spending their time.

Marlisse Silver Sweeney: Right. And it probably gives families a little bit more education too of, you know, it’s a little bit broad best interest of the child, but it sounds like the criteria you just set out for me gives people something at least to focus on. Erin, I was actually going to ask you to expand a little bit more about an important theme in the changes which is more of a focus on family violence and the prevention of family violence.

I understand from a webinar that you both were a part of that between 2007 to 2011 a woman’s risk of being killed by a former spouse was six times more than the spouse that she’s currently living with. How do the updates reflect this stark reality? What is the Divorce Act doing to mitigate family violence?

Erin Brook: Well one of the primary things they’re doing is they actually turning their mind to family violence as a consideration not only just in making orders but also with respect to the best interest of the children. And they, like Melanie has suggested, have expanded that definition of family violence to mean any conduct, whether or not that conduct constitutes a criminal offence that’s done by a family member against a family member that is violent, threatening, that is a pattern of coercive controlling behaviour, or that causes a family member to fear for their safety or the safety of another person, especially in the case of children, or if there’s been any exposure to that violence.

So it expands that definition to allow for the courts to take protective measures and to actually consider all of the elements that go into violence, rather than just is there a criminal charge that’s resulted, has it resulted in the level of criminality that we would consider family violence. It goes beyond that and it encompasses a scope of behaviours that actually will seek to protect people from not just physical abuse but also it includes things like forced confinement, using force if you’re necessary to protect each other. It encompasses sexual abuse, threats to kill or cause bodily harm, harassment – including stalking which is something that we often see in family files, following behaviours – or the failure to provide someone with the necessities of life.

So it’s actually quite an expanded definition. Like Melanie said, it includes financial abuse so the controlling over money, which is something we can see in family files where there’s a power imbalance with respect to income disparities. And again, it’s also expanding to include threats to kill or harm animals or damage property, which I think is an expansion on the concept of historically what family violence includes.

And again, those are things that we can sometimes see the threats to do those things in family files, like “If I can't have it I'll burn it down” for example. So I think with this it really, it’s a nod to what family violence actually looks like in reality, not necessarily a limited scope of what could be proven in a criminal court.

Marlisse Silver Sweeney: Right. And as practitioners in this space, I mean you both have drawn on examples already, you must experience all types of this violence first hand through your clients. Is it surprising that it took until 2020 to actually expand this definition of family violence? Like, as you both spell it out for me, I'm thinking in my own mind well yeah, that seems pretty practical.

Melanie Del Rizzo: Well let me tell you that when I first started practicing law here in Newfoundland, the violence against a spouse wasn’t necessarily considered to be violence against a child, even if the child had witnessed it. And so, we’ve seen – even in the last 25 years since I've been practicing – seen a real C change in this. And it’s not something that happened overnight. It’s slow progress. And I mean that changed fairly early on in my practice, but I remember being quite appalled by that particular approach to family violence.

And I think we’ve come so far. This really does, again, put into the legislation what a lot of the courts have been doing all along, but not all. So, it really gives great information and advice to people. And as part of this, the federal government and the Federal Department of Justice has been providing, and will be providing, a lot of information and education to everyone who’s interested, parties and lawyers and like public legal information and information for lawyers to be able to identify family violence in their files and gives them steps on how to deal with it.

So, you know there’s a lot of people who dabble in family law and they may not be able to necessarily identify a situation where a client’s experiencing this kind of family violence. So all of this is, again, along a continuum that I've seen over the course of my career, and it really is heartening for me to see the changes that have come along.

But one of the things I do want to say, like the federal government is providing I believe is they’re talking about a screening tool, for instance, which is something that’s been available to people. But it’s a difficult thing to have available to everybody without training, because you don’t want to provide a tool and then somebody misuses it and misses a case and something happens, you know. So there’s liability issues for a lot of these tools, but they’re going to be providing something to assist lawyers in being able to identify it.

So what I like about the legislation is, yes, they’ve changed and they’ve really given this expansive definition for family violence. But also, the government is also assisting in helping educate people in recognizing it and in how to deal with it going forward. It’s a very, very difficult issue and we’ve seen how it can be devastating if it’s not caught and dealt with early on.

Erin Brook: And one thing I find quite progressive about the definition of a family member that can be considered under an analysis of family violence is that it not only includes the spouse and the children, but it includes new partners of the spouses as well as anyone who is participating in the activities of the household. So, if there’s a family member that’s living in the home that’s also being a subject to the violence, they’re also being able to be considered under this expanded definition of family member. So that’s something that I found quite progressive.

And I think just the focus on this and, yes, the governments stepping in to help with family violence screening. Because that is an obligation on a lot of family lawyers in their respective provinces to screen for family violence, that we have those tools to help us identify these things going on on our files before our clients are in jeopardy or before it’s gone too far that there’s an actual physical safety risk.

Marlisse Silver Sweeney: Right. You’re right; it is such a progressive way to look at the family structure and what a modern family unit might look like. And so, that’s interesting that in 2020 we are updating our laws to reflect the reality that many Canadian families face.

I wanted to talk to you both, and I'm changing gears a little bit, but I understand that there’s more Alternative Dispute Resolution focus or provisions – and you’ll have to clarify what this looks like in the act – but Erin, can you give me a bit of a rundown about how the changes are focusing more on Alternative Dispute Resolution?

Erin Brook: So I think that when you talk to anyone who practices family law, they will tell you that the best solutions are those that the parties have helped craft for themselves. And I think one of the options that we get with Alternative Dispute Resolution really is the opportunity for the parties to be actively engaged in creating a solution that works for their families.

And no two families are exactly the same. So having legislation that encourages us to utilize modes of Alternative Dispute Resolution such as mediation or arbitration, or any of the other options for families to sit down together rather than have an adjudicator such as a judge unilaterally make a decision for them after a rather clinical process of introduction of evidence through counsel in a court process, it really gives them a lot more opportunity to have a say in what’s happening in their family and to work towards a resolution that globally they’re going to be more happy with at the end of the day than if someone who doesn’t know their family as well as they do makes that decision for them.

So I think the fact that our legislation is encouraging and in fact strongly suggesting that parties try these methods prior to going through an adjudicator process in the court is really focusing again on that be a part of your creation of your own solution to the issues before your family.

Marlisse Silver Sweeney: OK. And Melanie, how do you think this will play out in practice? So as a practitioner, does this place more obligations on you? Do you think it’s a useful tool?

Melanie Del Rizzo: Well, I think a lot of family practitioners are doing this anyway, and I would hope that they are. But one of the things that the Divorce Act does is it creates an actual obligation on legal advisors – is what it says in the act – to say that you have discussed all available Alternative Dispute Resolution processes with your client, and that you have done that prior to actually starting the court process.

So, with that obligation, I hope that people give that the attention that it deserves and it’s not just a checkbox on a form, because really, there are a lot of different things that are available in each province, some of it is free, some of it is fairly easily accessible, certainly with respect to trying to decide parenting and child support issues. There are programs for the courts that people can avail of, and then of course the private mediations and those sorts of things.

So a lot of this is extremely important that all practitioners of family law really address with their clients to see what can be done. And even if some things can be resolved and some things have to be litigated, like make sure that we do that.

And I would like to say that one of the silver linings of the pandemic is that, with no access to the courts for a period of time, I think we’ve all been forced into Alternative Dispute Resolution. And hopefully some of the good practices that we’re using now to try to resolve files – because we don’t have another option – will carry on to the future, because people can now see, “Oh, this really worked and it works best for this family”.

Marlisse Silver Sweeney: Right, and that’s a timely change actually because, just to clarify with both of you, these changes were meant to be enacted July 1st but now, because of the COVID-19 pandemic, we actually don’t know – they’re not going to be incorporated July 1st and we’re not sure when they’re going to come into effect. Is that clear?

Melanie Del Rizzo: That’s correct. And I don’t mean to interrupt you, Erin, but the implementation date will be announced – the new implementation date will be announced shortly, but as of the recording of this podcast it has not been. And I think a lot of the issues are there have to be a lot of changes made to forms and processes in the courts across the country.

There was the language rights that are included in the new Divorce Act, that you can have trials in French or English, and then the forms have to be available in French and English so things have to be translated. So, they’re working through the federal and territorial and provincial committees to figure out what the timelines are for that going forward.

Marlisse Silver Sweeney: One more major change that I wanted to discuss with both of you and that was the framework for relocation that’s being introduced. This must be just a huge issue in your practices, for your clients. What does this new framework look like? And what do lawyers need to understand about it? Erin, why don’t we start with you on this one?

Erin Brook: I think first it’s really important to understand what is relocation. So, a lot of people think that that’s moving within a community, but that’s not what the scope is being considered here. Relocation really does mean a change in the place of the residence of a child or a person with parenting time or decision-making responsibility, that is likely to have a significant impact on the child’s relationship with people who they have parenting time with or significant people in their lives, and a person who has an order for contact.

So really, this is a move that’s going to more than just change their address in a city. It’s really about changing where they live, changing where they might go to school, or having one of their parents who’s actively engaged in parenting time moving from that jurisdiction.

So, when we’re looking at this, really, the scheme is going to end up being that we have to give notice, which is a new format. There’s going to be forms that are required to be completed, notice that’s required to be given to the other parent. And so any person who’s got parenting time or decision-making responsibilities for a child, or who has contact, and whether they’re intending to move with or without the child, has to fill out this form and give their 60 days notice and provide a proposal for what the parenting might look like after they move.

Marlisse Silver Sweeney: OK. And just to clarify in my mind, this gives a bit more structure to relocation for both parties?

Erin Brook: I think what it does is it creates a framework that didn’t exist before to say, you know, if you are planning kind of a move like this that requires some conversation and discussion, again it goes back to what’s in the best interest of children; we need to focus on what’s impacting them. And I think this is sort of a codification of behaviours of parents in order to, again, focus on to the interest of the children.

Marlisse Silver Sweeney: OK. And Melanie, in your years of practice, how do you think that – this new tool, this new framework – how do you think it will work with the parties, with the clients that you represent?

Melanie Del Rizzo: Well, I think as whole relocation is always the most difficult issue, parenting issue that arises. As you can imagine, there’s always a level of cooperation and compromise that comes up when you’re trying to negotiate a settlement or even when the court imposes a decision on parties, but there’s no compromise when it comes to relocation. You can't say, well I want to move to British Columbia or I want to stay in Newfoundland, OK, well we’ll move to Winnipeg, you know. Like that’s not really a possibility.

So, you know it’s extremely important for judges to be able to, and for parties to have some degree of predictability. Because, as it stands right now, the only test is “Oh, is this in the child’s best interest”, and that’s very broad. So this gives a little bit of a framework, a little bit more predictability for people.

So the idea is, if a child is living the vast majority of time with one parent, then there’s a presumption that that parent should be able to move with the child. Now if it’s not in the child’s best interest it still can be litigated and rebutted. But it really gives just a little bit more ability to the parties to predict an outcome which then predicting an outcome is really the only way to settle some of these cases because they’re so difficult.

So again, this is only Divorce Act and a lot of these notice provisions and those kinds of things really only apply if there’s an order under the Divorce Act. So, not everybody right can avail of this. I know that the governments in various provinces are trying to implement legislation so that unmarried parents can as well have similar sorts of guidelines, which is also important, but they’ve only been passed in Nova Scotia and B.C. right now and those are both somewhat different than what the Divorce Act says. So, there’s going to be a lot of growing pains with this legislation, but we’re very happy to see it come out because it does at least give some sort of a framework, because it really was a very, very difficult area of law before this.

Marlisse Silver Sweeney: OK, well thank you. And we could talk about this all day because it’s such a fascinating area of law; there’s some huge sweeping changes that are coming down the pipeline, but I don’t want to take up too much more of your time. But I was just interested in moving from the theoretical and the legal analysis to your own personal views about these changes and what they’re going to look like professionally for you, and how you think they’ll contribute to the rule of law within Canada.

So Melanie, what do you think? You’ve been in the field for a while now, are you happy with these changes? Do you wish to see others?

Melanie Del Rizzo: Well this is the biggest change we’ve seen since the implementation of the previous Divorce Act in 1986. This is a huge C change for everybody. Again, it has been picked away at over time with court decisions and whatnot, but it’s very progressive change.

One of the things I want to say is that it also clears up a lot of problems that were in the previous act. One of the major ones was a provision that was called the Maximum Contact Principal and it said more or less that children should spend as much time as possible with each parent, and then it says, “as is in their best interest” is what it used to say. But people would ignore that, and a lot of courts ignore that to say that there was some sort of presumption that having equal time with both parents is in a child’s best interest, which has been very clearly changed in these amendments.

So that kind of a change, for instance, is a huge one for me. It really gets rid of a lot of misconceptions about parenting. It fixes this rights-based approach that people have been using to ignore a lot of the children’s rights as opposed to the parents’ rights. And you know, to me, I've seen it make a change in the attitudes of people even without it being enforced as of right now. I can see that people are really starting to understand why these changes are coming into effect, and a lot of lawyers are being more sensitive to a lot of the issues that are raised here.

And one of the other things that I wanted to mention as well is the Voice of the Child section, in the best interest of the child, making sure that the children’s voice is heard when it’s appropriate to do so, certainly having them heard based on what their age and developmental level, you know, what weight is given to their opinion. So I think some of these things I've seen, courts in my province – and I know in other provinces they do a lot more – they’ve really started to consider things like the voice of the child in making decisions more. So I think it really has – it’s going to benefit Canadian families going forward.

Now, of course there’s all sorts of changes that I could suggest or different things that I'd like to see, but as it stands, you know I support the legislation strongly and I'm so happy to see it.

Marlisse Silver Sweeney: OK, well thanks for your views. And it’s really interesting too about authority, ownership, prominence to what children want and their voices being heard. Erin, how about you? What are your thoughts on the sweeping changes?

Erin Brook: Overall, I think the legislation has a real focus on modernizing and catching up with what we’re actually doing in practice. So I think for me that’s a very positive change. I also think that a lot of these amendments are encouraging not just dispute resolution, but they’re also helping to facilitate access to justice and helping to streamline some of our processes.

So, when we look at the requirement for lawyers to canvass dispute resolution processes with their clients as well as that positive obligation to share family justice services and community opportunities for them to, one, educate themselves and, two, resolve their problems outside of court, we’re really seeing an expansion on the opportunities for people to take hold of their family law disputes and resolve them. I think that this legislation also creates sort of – we didn’t talk about it here but it creates sort of a legislative authority for an administrative establishment of child support. It improves our child support recalculation scheme. It streamlines interjurisdictional processes.

So there’s a lot of ways that, over and above just the changes in terminology which is modernizing, it’s also helping to make the whole system run a little more smoothly and sort of catch up with all the changes that have happened in the 30-plus years since the last time the Divorce Act has been looked at legislatively. So, it’s catching up with what the courts are saying, with what we’re doing in practice, and it’s really trying to help service the users of this piece of legislation.

Marlisse Silver Sweeney: OK, well great. I think that’s a really nice summary to end on too. So Erin and Melanie, thank you both so much for speaking with us today and really breaking down these broad topics, so that we can understand how they’ll actually play out in practice.

Melanie Del Rizzo: Thank you.

Erin Brook: Thank you.

Marlisse Silver Sweeney: Thanks so much to both Melanie and Erin for breaking down the changes for us today. If you’d like more information on these changes, check out our webinar online. I'd love to hear your thoughts on these issues.

Tweet to us at CBA_news, or you can reach me at my handle, @marlissess. We are on Spotify, Apple Podcast and Stitcher wherever you listen to podcasts. Subscribe to receive notifications for new episodes, and leave us a review if you like what you hear. We have a podcast in French called Juriste branché.

Thanks for listening. Stay tuned for the next episode.