Remarks to the Standing Committee on Bill C-78

On November 22, 2018, Luke’s Place testified as a witness before the Standing Committee on Bill C-78, An Act to amend the Divorce Act.

In collaboration with the National Association of Women and the Law (NAWL), Luke’s Place prepared a Joint Brief and Discussion Paper. The Brief was endorsed by more than 40 Canadian organizations.

Many positives

Luke’s Place is delighted to see Bill C-78. The Divorce Act has not been amended for more than 20 years: the realities and needs of families in Canada have changed considerably in that time.

The Bill that has many positive elements:

• Placing the well-being of children at the centre of the Bill
• Developing clear criteria for the best interests of the child test, which will assist unrepresented litigants, lawyers and the judiciary to understand what needs to be taken into account when determining arrangements for children
• The clear identification of family violence as an issue to be taken into account in divorce proceedings:
  • The inclusion of coercive control, psychological, financial and animal abuse in the description is extremely important
  • Recognizing that family violence exists whether or not the conduct constitutes a criminal offence is critical if women, who are the primary victims of abuse within the family, are to receive appropriate outcomes in divorce proceedings
• Not introducing a presumption in favour of shared parenting: because of the unique circumstances of every family, any such presumption would not be in the best interests of children
• Sections of the Bill will make income disclosure and enforcement of support orders both easier and more efficient: many women and children live in poverty post-divorce because the present systems are cumbersome and slow.

Areas for improvement

The Best Interests of the Child

• The safety of the mother enhances the well-being and best interests of their children. We would like to see section 16 amended to clarify this.
• Section 16(3)(c) requires each spouse to support a relationship between children and the other spouse, and 16(3)(i) requires spouses to communicate and cooperate with one another on matters related to the children. Our work with women has shown us, repeatedly, that these are not appropriate in cases of family violence. Indeed, communication and cooperation may be impossible where the abusive spouse engages in coercive and controlling behaviours.
• Provision 16.2(1) sets out the principle that a child should have as much time with each parent as is consistent with their best interests. This is highly problematic for mothers who have left an abusive spouse, who often have serious and legitimate concerns for the safety of their children when in the care of their father.

Language

• We are not convinced that changing the language of custody and access to parenting time and decision making responsibility will have the results the Minister is hoping for. (Recommendation 8)
• The definition of decision-making responsibility at the beginning of the Bill is general and lacks detail. Coupled with clause 16.2(3), which says that a person with parenting time has “exclusive authority” to make day-to-day decisions about the child, the Bill creates a broad opening for an abusive spouse to intentionally interfere with the other spouse’s ability to make decisions about the children.

Family dispute resolution (FDR)

• We do not oppose the use of FDR, even in cases involving family violence. We have worked with women who have found the process empowering and who have emerged with satisfactory outcomes. However, we do not support the prioritizing of FDR over litigation and have concerns that the present wording in the Bill does this.
• We would like to see the duty on parties to resolve matters via FDR rephrased to include a specific reference to family violence. (Recommendation 14)
• We also recommend rewording the duty on legal advisors with respect to FDR to require them to screen all clients for family violence and to discuss ALL available processes with their clients rather than encouraging them to use FDR.

Contact orders

• We propose stronger language to require that the best interests of the child test be applied as well as other relevant factors when a contact order is being considered. (Recommendation 10)

Relocation

• The family violence exemption from the notice requirement needs to be clearer, and we have offered some wording that could assist with this. (Recommendation 11)
• The burden of proof sections are ambiguous and confusing, particularly for unrepresented litigants, and think the language of “substantially comply” should be removed. However, we do NOT support the implementation of detailed time calculations in their place. Recommendation 13)

We hope this Bill is able to move quickly through the remaining stages of the process so the Divorce Act can become a law that protects the best interests of children, that understands family violence, that reduces child poverty and that increases access to justice for families in Canada.

Read our full Remarks to the Standing Committee on Bill C-78.