Bill C-78 Amendments to the Divorce Act – and My Appearance Before the Justice Parliamentary Committee

​Having appeared before a Parliamentary Committee yesterday in Ottawa, it remains to be seen whether Bill C-78 will proceed as drafted, or whether changes will be made prior to it’s passage.

Joining me yesterday were Professor Nicholas Bala, from Queen’s University Law School, Julie I. Guindon – a Family Lawyer from Ottawa, and Laurie Pawlitza – also a family lawyer and former Treasurer (President) with the Law Society of Ontario.

The general discussion regarding the Act was more consistent than I would have expected – while no one (including myself) referred to the proposed legislation as “Re-arranging the Deck Chairs on the Titanic” (see my article with Lawyers Daily here), there seemed to be a common agreement that while many of the amendments were “helpful”, they were not going to “fix” family law to any great extent. Even the most positive proponent on the panel, Nicholas Bala, conceded that family law would remain difficult and expensive to process – though with the exception of my own commentary, there was no suggestion of a complete overhaul of the Divorce process.

Thus – my own convictions appear to be confirmed – that while Bill C-78 appears to provide some elements of benefit to those suffering through Divorce in Canada, it is hardly the “major improvement” that many suggested when word of the bill first became public.

My own most critical elements were set out in a brief submitted prior the hearing which can be read here.

Essentially, my biggest criticisms:

a) The presumptions relating to parental relocation are not helpful, and if passed, will lead to Judges becoming biased in favor of a move regarding a parent with primary care of a child, or against a move in a case of shared parenting – distracting the Court of considering all factors fully in favor of simply moving quickly to the presumption. While that may result in an appropriate resolution for MOST children – as referenced in the current leading case of Gordon v. Goertz, the court is not tasked with taking an approach to help most children – it is tasked with taking an approach which helps the one specific child they are dealing with in each specific case;

b) The specific inclusion of an obligation of take into account the views and wishes of children,without making any provision for an adequate process to assure those wishes are obtained in a sensitive fashion is likely to result in added harm to children who will be put not he spot by poorly considered approaches of parents, lawyers and judges who will often lack sufficient skill to not put a child on the spot to “pick who they love most”;

c) Efforts to encourage other family dispute resolution mechanisms – other than the court – are unlikely to make any difference where they remain optional and without consequence where parties and their lawyers ignore their obligations to at least consider such efforts;
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d) Finally – the lack of support to assist parties in dispute in working on emotional trauma relating to their divorce will likely maintain the largely irrational approach to family law resolution which so typifies family law.

There was an interesting question from Iqra Khalid, Member of Parliament for Mississauga—Erin Mills – as to whether I thought alternate dispute resolution mechanisms should be mandatory in cases of domestic violence or abuse. My comment – there are only two courses of resolution for a victim abuse where lawyer/lawyer settlement is unsuccessful – trial, or some form of mediation. I suggested quite pointedly that with appropriate safety measures, mediation efforts are much less likely to leave the victim of abuse in a court room, facing her abuser, with a lawyer likely subjecting the victim to further “abuse” through cross-examination in what is often a brutal trial process.
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So – with some modest re-arranging of the deck chairs, the Titanic of the divorce litigation process will continue on, it appears. At least for the time being.

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