Bill C-78: Change Without Change

The federal government recently introduced Bill C-78 in May of this year – a Bill intended to amend the Divorce Act.  This is not another attempt to substantively change the Divorce Act such as by previous failed attempts to create a presumption of “shared parenting” as the default starting position in any divorce with children.  Rather, Bill C-78 is intending to vary the Divorce Act in a  number of ways:

1. Replacing the terms of “Custody” and “Access” with “Parenting” and “Contact”, while also adding the additional terms of “Parenting Time” and “Decision-Making Responsibility”‘
2. Creating a list of factors relating to the “best interests” of the child;
3. Imposing obligations and duties upon parties and their lawyers to encourage use of alternative dispute resolution;
4. Introducing measures to assist the Courts in addressing family violence; and
5. establishing a framework for the relocation of a child.

In an article in the Lawyer’s Daily, it has been pointed out by the author, Steven Benmor, that many of these proposed changes have either been implemented in out-of-court settlements, or already addressed by the Courts.  In reference to the first proposed change, the article cites the case of M. v. F., 2015 ONCA 277, wherein the Court referenced the current terms of the Divorce Act, those of custody and access, and suggested that these are highly charged words and terminology that denote “winners” and “losers” in parenting files – that the words alone promote adversarialism in divorces.

Under this viewpoint, it is presumably the words in the Divorce Act that lead parties to conflict and fights over parenting; it is how they are defined, and the terms used to defined their rights, that cause parties to engage in adversarial behaviour.

Notwithstanding that there is some truth to the above, that words do have power and the meanings that are ascribed to certain words can impact a parties viewpoint, the reality is that such a simplified analysis completely ignores the fact that parties will engage in conflict over parenting simply because to most parents, their children are everything.  For a large percentage of divorcing families, it is not the words used to define their role in their children’s lives, it is how much time they are “allowed” to spend with their children.

Divorcing parties transition from a life where they are involved in their children’s lives based on their own decisions relating to involvement, to a life where potentially the other party is seeking to impose limitations on time with the children, and a third party – the Court – is imposing rules and “permission” to parents on when and how much they might see their children.  In such a set of circumstances, with parental roles at stake, it is not the language that leads to conflict, it is not the language that creates a “winner/loser mindset”.  Rather it is the reality of the system that pits parent against parent over time with the children, and the fact that the strength of a future relationship with their children is at stake that promotes conflict; it is the system that places decision making over a child’s life in the hands of a third party who never meets the child, and often never hears from the parents themselves – often only their lawyers – that creates a system in which the winner/loser  dichotomy is not just a mentality, but a reality.

If Parliament is serious about limiting and minimizing conflict in parenting scenarios, more than just language needs to change, viewpoints and presumptions about parenting also need to change.

This is part one of a five-part series on Bill C-78.  We will be providing additional posts in coming days, addressing the proposed changes under Bill C-78.