Reforming the Divorce Act

Member of Parliament Maurice Vellacott has been trying since 2010 to get a private member’s bill that seeks to “equalize” the divorce process passed into law.

The Conservative backbencher’s previous attempts have been thwarted by prorogations and snap elections. This is likely Vellacott’s last best chance at getting his Divorce Act (equal parenting) through, as he will not be running for re-election in 2015.

The Saskatchewan MP tabled the bill, also known as C-560, last December, declaring it to be “for the sake of families and for the benefits of children.”

The bill’s primary impact would be to replace “custody order” with “parenting order” in an effort to give both parents an equal shot at raising the estranged couple’s children.

“Bill C-560 would require parents to co-operate toward equal shared parenting unless they can make a credible compelling case that this would not be in the best interests of their children,” Vellacott says.

The underlying assumption of the bill is that judges have a tendency to award custody to one parent over the other — usually, the mother. Indeed, according to Justice Canada, only 13 percent of divorces in Canada currently result in shared custody – mothers win custody in 79 percent of cases, while fathers are awarded custody in just seven percent.

Vellacott could be accused of trying to tilt the law to favour a socially conservative agenda — indeed, he has a long and storied history of crusading against gay marriage and abortion rights. Fathers’ rights advocates and others might welcome C-560 as an improvement on existing divorce law, but some see it as a step backward.

National put the question to Deborah Conrad, a partner at Boyneclarke LLP, in Halifax: Does C-560 fix a legitimate problem?

“I have been practising exclusively in family law for almost 30 years, and I still do not feel comfortable in answering this question,” she says.

Lawyers can expect three repercussions from this bill: a statutory presumption that both parents are equally placed to raise the child, barring evidence to the contrary; an increased requirement for both parents to sign off on things like obtaining passports for the child; and more litigation, she says.

The changes that Bill-560 would bring about, on their face, are positive, Conrad thinks, but she adds that courts have been moving in this direction all on their own since 1997, when the Federal Child Support Guidelines came into place. By 2005, shared custody was becoming the fashion. “Today we are seeing more joint custody and shared parenting orders than ever before, despite the current Divorce Act,” Conrad says.

That’s thanks, in part, to updates to federal guidelines that try to capture and emphasize the nuance in each separation.

While some positive trends would be reinforced by this bill, there is a tremendous amount of criticism that comes with legislating equal parenting measures. Those who favour the current system say that many of the relevant details of a couple’s split could be lost if both parents are given equal footing in divorce proceedings; and that the justifiable advantage currently afforded to the primary caregiver would be taken away.

When a previous incarnation of the bill was tabled in 2010, the National Family Law Section of the Canadian Bar Association submitted that the bill — while well intentioned — was a departure from the “best interests of the child” test.

“It would change the primary focus in custody and access matters from what is best for children to equal parental rights,” the submission read.

Patricia Hebert is a lawyer at Gordon Zwaenepoel and the vice-chair of the CBA’s National Family Law Section. She says the bill is utterly misguided.

“Just because equal, shared parenting works for the children that have it, doesn’t mean it should be imposed on every family and they should have to fight to get out of it,” she says.

Hebert says the bill is poorly written, and consistently limits and narrows the court’s ability to look after the best interest of the children, instructing them instead to consider the parent’s wishes first and foremost.

For example, the bill provides that the court may depart from the equal-parenting principle only if the well-being of the child would be “substantially enhanced” by doing so — a phrase which, Hebert notes, has absolutely no legal significance and may be a purely arbitrary distinction. Furthermore, the bill only recognizes family violence as a factor if it occurs in the presence of the child.

The submission to the Justice and Human Rights Committee in June 2010 also underlined how the bill could fundamentally change the courtroom environment.

“A rebuttable presumption of equal parenting would encourage some families to engage in litigation to prove that the other parent is somehow inept,” it reads.

A major problem the CBA found with Vellacott’s bill was its retroactivity, which could open up just about every custody order in Canada. That would be “nothing short of disastrous for Canadian families and family courts,” the submission reads.

“The retroactivity is just horrifying,” adds Hebert. “That can’t be good for kids. To re-litigate just because someone changed the rules.”

Conrad says many of the criticisms levied at the bill are over-stated, and don’t overshadow the fundamental benefits of the bill.

“I am also a proponent of a presumption that it is in the child’s best interests to spend equal time with each of his or her parents and that parenting responsibilities ought to be shared,” she says. “Single parenting can be exhausting. Children deserve to have the best of each of their parents.”

That doesn’t mean the bill, if it makes it into law, won’t have unintended consequences.

“It should not, but my answer, sadly is ‘probably,’ [it will],” Conrad says.

Trying to afford each parent equal time with the child as a default could bring all sorts of complex situations that are avoided by simply affording custody to one parent over the other. Situations where one parent lives in a different city, for example, could frustrate the effort to give the child the closest thing to a two-parent household.

“It’s definitely going to impact that child to spend half their time in the other parent’s home that’s two hours away from the school,” says Hebert.

The bill had its first round of debate on March 25, the first time that Vellacott's plan has even been up for debate in the House. While the Justice critics for both the NDP and Liberals echoed the Canadian Bar Association's criticism of the bill, they did underline that they support the spirit of the bill – to encourage equal parenting. Commenting on the bill in Question Period, Justice Minister Peter MacKay wouldn't comment on specifics, only saying that the bill ought to receive thorough debate.

Hebert says the idea of enhancing equal parenting is laudable, but this bill is not the way to do it.

“Some of the ideas, yes, we agree with. We need divorce act reform in this country, but in a principled way,” she says, noting that improving access and education about the system is infinitely more effective.

While private member’s bills are always a long shot, they have been known to sneak through from time to time. It will be decided in the coming weeks whether the bill will even make it to committee, and after that it’s anybody’s guess.