Bill C-78. The big announcement for family lawyers yesterday was the unveiling of the Federal Justice Minister Jody Wilson-Raybould’s revisions to the Divorce Act through Bill C-78.
According to Global News, with this announcement, “
Last night I finally had a chance to read through it, and, by and large, it is a codification of the previous common law, though there are a few new wrinkles that may actually pose more problems than solutions if the goal is to reduce tension and adversity between spouses trying to move forward following a relationship breakdown.
The most significant change, in my opinion, relates to the issue of shared parenting and mobility.
To this point, I have resisted the demand of clients to assert shared custody as the “be-all and end-all”. I have suggested that the quality of relationship is more determinative than the “math” of who has the child more. That cooperative and functional parenting is the goal, not “equal time”. That – and this comes up often – even if your spouse has sole custody, any potential move from your community cannot take place unless it can be established that it’s isn’t the child’s best interests, that there is no presumption in favor of the custodial or primary parent.
The present law regarding parental mobility (moving away with a child) is set out by our Supreme Court of Canada in Gordon v. Goertz. In that case, the mother and father of a child lived in Saskatchewan until their separation. Following the separation, the mother obtained “sole custody” of the child, and then asserted an intention to move, with the child, to Australia – obviously limiting the father’s contact with the child. The father brought application to vary custody or prevent the mother from moving.
The Court in that case – held that in seeking to review custody, the onus is on the parent applying to establish a “material change in circumstances”, and once that onus is satisfied, there is a fresh review of all relevant circumstances to then determine what is in “the best interests of the child”. Importantly, Justice McLachlin (for the majority), reviewed arguments suggesting that there should be a legal presumption in favor of the primary parent’s decision to move – in doing so, she made what I would suggest were excellent and cogent points, including:
“Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of “the child” whose best interests the court is charged with determining.”
“Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected”
“Finally, the proposed presumption in favour of the custodial parent may be criticized on the ground that it tends to shift the focus from the best interests of the child to the interests of the parents. (emphasis added) As mentioned earlier, underlying much of the argument for the presumption is the suggestion that the custodial parent has the “right” to move where he or she pleases and should not be restricted in doing so by the desire of the access parent to maintain contact with the child.”
At the end, the Court rejected that argument, and stated, unequivocally:
For these reasons, I would reject the submission that there should be a presumption in favour of the custodial parent in applications to vary custody and access resulting from relocation of the custodial parent.
So. Then. What of Bill C-78?
Well. To begin with, Bill C-78, s. 16 seems to put the child first – which most of the current media hoopla has focused upon:
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order
So far, so good. What matters is ONLY what is in the best interests of the child – as it should be, and as the Supreme Court affirmed in Gordon v. Goertz, above.
Of course, the current Divorce Act already affirms that:
16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
However – not mentioned to any great extent in the press releases or the media analysis is this new proposed change:
16.?93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
This is a massive change.
This flies directly in the face of the reasoning of the Supreme Court of Canada in Gordon v. Goertz, and, at least in this writer’s opinion, puts the interests of the parent ahead of the interests of the child, contrary to the assertions in section 16. This is a legal presumption in favor of the primary parent – there is no other way to couch those provisions – which means any lawyer worth their salt had best get up to speed on and begin advising their clients today that shared parenting is significantly more important than it was a day ago.
And that means, unfortunately, more litigation and more disagreement – without question.
And that means, unfortunately, that the ridiculous headline on Global News yesterday couldn’t be farther from the truth.
Sadly, the new changes may be good for lawyers business, but not so good for parents trying to find an easier way to just “move on” after a divorce.
For more information and for a broader discussion of the changes offered in Bill C-78, please feel free to contact me or one of our family lawyers for a consultation.