On May 22, 2018, Bill C-78 was introduced in the House of Commons. The bill proposes significant changes to a number of existing acts, including the federal Divorce Act, the Family Orders and Agreements Enforcement Act and the Garnishment, Attachment and Pension Diversion Act.

The bill’s sponsor, Jody Wilson-Raybould, MP for Vancouver Granville, summarized its objectives as follows:

This enactment amends the Divorce Act to, among other things,

(a) replace terminology related to custody and access with terminology related to parenting;

(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;

(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;

(d) introduce measures to assist the courts in addressing family violence;

(e) establish a framework for the relocation of a child; and

(f) simplify certain processes, including those related to family support obligations.

The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,

(a) allow the release of information to help obtain and vary a support provision;

(b) expand the release of information to other provincial family justice government entities;

(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and

(d) extend the binding period of a garnishee summons.

The enactment also amends those two Acts to implement

(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996; and

(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.

The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,

(a) give priority to family support obligations; and

(b) simplify the processes under the Act.

Gelman & Associates’ own David Frenkel recently wrote about Bill C-78 for The Lawyer’s Daily.  In the article, he argues the bill stops short of providing what is truly needed in order to improve Canada’s family law system, specifically a change to the overall resolution process for family law disputes. His article was recently cited by Yorkton-Melville (Saskatchewan) MP Cathay Wagantall in a speech before Parliament. In her speech, Wagantall argued that changing terminology isn’t enough to change behaviour between parents involved in parenting disputes, stating, “simply changing the terminology will not in the end make a huge difference.”

Wagantall cited Frenkel’s statement that

“The impetus in the fights between parents does not begin when spouses read the terms “custody” and “access” in the Divorce Act. Therefore, unless there are additional provisions added to the proposed amendments, the family conflicts will likely continue even with the replacement of the terms “custody and access” with “parenting” as introduced by Bill C-78.”

Frenkel also stated that the ideas contained in the bill have already begun to appear in court decisions, writing,

“The significant change in wording likely arose to answer the concerns from the courts over the years that awarding one parent the status of “custody” and the other “access” created unnecessary winners and losers…. [A]s early as 1975 Justice Robert Furlong…wrote as follows: “The time is long past when the Courts disposed of the custody of a child as a reward to a well-behaved parent or as a punishment to one who misbehaved. The custody of their children is not a prize to be contended for by parents as an award for their good behaviour.

“In 1986, the Manitoba Court of Appeal upheld a decision to refrain from using the words “custody” and “access” because the trial judge thought “those are destructive to a child”.

Frenkel was also quoted for his article’s statement that sophisticated litigants will come to understanding that a move from the word “custody” to the phrase “decision-making responsibility” will still create fights and the notion of winners and losers in disputes.

Frenkel said it may be important for the bill to extend the jurisdiction of court’s, writing,

“Therapy and assessment orders for litigants will not solve all the problems in custody battles, but they may expose the underlying factors contributing to unreasonable positions taken by them. Therefore, in addition to a change in language to the Divorce Act, it may be necessary for a court to have the jurisdiction to order trained professionals to determine and opine whether a parent’s desire for custody or a ”parenting” order is based on healthy motives or not. And if such information cannot be readily available when needed, then simply repealing the terms “custody” and “access” may not achieve the intended consequences we all have been waiting for with Bill C-78‘s introduction.”

Towards the end of her speech, Wagantall summarized Frenkel’s position that the bill “is ‘similar to the excitement over the maiden voyage of the Titanic’, which piqued my interest. With respect to the Titanic, he talked about all of its amazing additions to improve its amenities and necessities, such as squash racquets courts, baths, a gymnasium, a swimming pool, electric passenger lifts, all these of different services, including more deck chairs, to make the trip better. However, the reality was that they did not have what they truly needed.”

At Gelman & Associates, our highly experienced and knowledgeable Toronto family law lawyers provide clients with the information they require to make educated decisions concerning their separationdivorce, and child custody & access issues. In addition to the extensive web-based resources available to our clients, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process. Please contact us online or by phone at 844-769-0737 to talk to us today.