The Power of Perspectives

The Canadian Bar Association

Kim Covert

Best interests of the child primary concern in Divorce Act changes

December 13 2018 13 December 2018

 

There’s much to applaud in Bill C-78, which amends the Divorce Act and other related legislation: the increased use of plain language, for example, along with proposals to replace the terms “custody and access” with concepts related to parenting; adopt a list of relevant factors in the determination of a child’s best interests; and encourage use of alternative dispute resolution processes, among others.

Still, a number of CBA Sections, led by the Family Law and the Child and Youth Law Sections, have proposed a total of 45 recommendations for changes to make to the bill. The concern central to most of these recommendations is that the best interests of the child be a paramount consideration in every facet of the Act that touches on children.

“A child rights approach to family law focuses on children’s best interests – their safety, security and well-being, informed by their meaningful participation,” the Sections say in their submission. “Many provisions in Bill C-78 are consistent with that approach, although we suggest some revisions to make them stronger and more effective.”

To start with, the Sections suggest the bill refer specifically to the UN Convention on the Rights of the Child, to help ensure that the Divorce Act is interpreted consistently with it.

Other areas where the Sections suggest changes include parenting plans, relocation of one parent, and child support.

On the question of family violence, the submission says, “the Divorce Act should clearly reflect the overarching priority of a child’s physical, emotional and psychological safety, security and well-being and the need for adult family members to protect a child from the risk of future exposure to family violence. Including the existence of family violence in the factors to be considered when assessing a child’s best interests is important for that reason.”

Protecting children from violence and conflict also requires programs and services, the Section says. “For meaningful change to flow, funding for these and other initiatives to advance the objectives of Bill C-78 will be necessary.

The submission also touches on language rights, noting that the Divorce Act does not currently recognize language rights, meaning that French Canadians in non-francophone jurisdictions are not entitled to bring proceedings or file pleadings in their own language.

“Family affects the lives of many people in Canada, and in a direct and intimate way, considering the high rate of divorce and its significant financial and emotional implications on children and families,” the Sections say. “The critical nature of this area of the law for many Canadians, including newcomers, calls for language rights to be recognized and added to Bill C-78.”

The Constitutional and Human Rights Law, French Speaking Common Law Members, and Alternative Dispute Resolution Sections contributed to the submission as well.

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