Each year, many Canadian children are affected by the separation or divorce
of their parents. The negative consequences for children are aggravated if parents
become involved in protracted conflict over separation. While governments cannot
eliminate such conflict, reforming the family justice system is one way to help
children and their parents adjust to a new family situation.
Family justice reform has been an issue of broad public discussion in recent
years. The Government of Canada's Child-centred Family Justice Strategy has
grown out of extensive work on family justice reform, including research,
consultations and ongoing collaborative
work with the provinces and territories.
In 1997, a parliamentary committee, the Special Joint Committee on Child Custody
and Access, was asked to assess the need for a more child-centred approach to
family law policies and practices, and in December 1998, the Committee released
its report, For
the Sake of the Children. The Government of Canada has taken an approach
to family justice reform that is consistent with the spirit of the Special Joint
Committee's recommendations in that it removes the terms custody and
access from the Divorce Act and bases parenting decisions solely
on the best interests of the child.
The purpose of the strategy is to help parents focus on the needs of their
children following separation and divorce. It is composed of three pillars -
family justice services, legislative reform and expansion of Unified Family
Courts. Taken together, these three pillars of the Strategy will help develop
and maintain a child-centred family justice system that:
- minimizes the potentially negative impact of separation and divorce on children;
- provides parents with the tools they need to reach parenting arrangements
that are in the child's best interests; and
- ensures that the legal process is less adversarial; only the most difficult
cases will go to court.
Some parents need support to make decisions about their children's care. They
need tools to help them minimize conflict, co-operate and work out child-focused
parenting arrangements. Parent education courses, mediation, and other court-related
services are all types of services that can be used to achieve these goals.
While the Government of Canada does not provide services to Canadians directly
because this is a provincial/territorial responsibility, it is committed to
promoting the development and maintenance of family justice services. The Government
of Canada will devote $63 million in new funding over five years to the provinces
and territories for family justice services.
Best Interest Criteria
The 'best interests of the child' has been the core principle of family
law in Canada for some time. In this reform strategy, this core principle is
reaffirmed and strengthened by adding a list of best interest criteria to the
Divorce Act. The list will help parents, family justice professionals
and judges determine the child's best interests in his or her unique circumstances.
The following is a list of criteria that will have to be considered:
- the child's physical, emotional and psychological needs, including the child's
need for stability, taking into account the child's age and stage of development;
- the benefit to the child of developing and maintaining meaningful relationships
with both spouses and each spouse's willingness to support the development
and maintenance of the child's relationship with the other spouse;
- the history of care for the child;
- any family violence, including its impact on:
- the safety of the child and other family members,
- the child's general well-being,
- the ability of the person who engaged in the family violence to care
for and meet the needs of the child, and
- the appropriateness of making an order that would require the spouses
to cooperate on issues affecting the child;
- the child's cultural, linguistic, religious and spiritual upbringing and
heritage, including aboriginal upbringing or heritage;
- the child's views and preferences to the extent that those can be reasonably
ascertained;
- any plans proposed for the child's care and upbringing;
- the nature, strength and stability of the relationship between the child
and each spouse;
- the nature, strength and stability of the relationship between the child
and each sibling, grandparent and any other significant person in the child's
life;
- the ability of each person in respect of whom the order would apply to care
for and meet the needs of the child;
- the ability of each person in respect of whom the order would apply to communicate
and cooperate on issues affecting the child; and
- any court order or criminal conviction that is relevant to the safety or
well-being of the child.
Terminology
A large number of Canadians have been critical of the terms custody
and access because in their view:
- the terms encourage too many parents to focus on their rights rather than
on their responsibilities and what is best for their children; and
- the terms promote the idea of a "winner" and a "loser"
who have fought a custody "battle".
Under the proposed reforms, the terms custody and access will
be eliminated for the purposes of the Divorce Act. A new model based
on parental responsibilities will be created. Removing the 'win/lose' connotations
will contribute to reducing levels of parental conflict and stress. The new
approach used in the Act and in legal proceedings will help parents to focus
on their most important obligation - making sure their children receive
the care they need.
The proposed legislation is based on a parental responsibility model. Its underlying
concept is that both parents will be responsible for the well being of their
children after separation or divorce. How they carry out their obligations to
their children is largely a matter for them to decide, using the best interest
criteria as a guide. The parenting arrangements they make will include allocating
1) parenting time - based on a residential schedule that sets out the time
that each child spends with each parent and 2) decision-making responsibilities
- regarding the children's health, education, religion and so on.
Where a judge is needed to make a decision - for example where parents
cannot agree or in high-conflict or family violence cases - the judge will
now issue a parenting order allocating parental responsibilities.
Family law is an area of divided jurisdiction. The federal government, and
the provincial and territorial governments share responsibility for family law
matters - including the law itself, the appointment and payment of judges,
and the structure and processes of the courts that handle family law cases.
For a family undergoing separation or divorce, this division of responsibilities
can be confusing. It can also contribute to delays in processing cases and to
high legal expenses.
As the name suggests, Unified Family Courts (UFCs) have jurisdiction over all
family law matters within one level of court (the provincial superior court)
and this structure allows the court to take a holistic approach to each family's
situation. This approach eliminates confusion for family members as to which
level of court should be dealing with their case. The structure of the UFCs
offer other benefits as well, including a variety of services, either attached
to the court or based in the community. These support services differ from jurisdiction
to jurisdiction, but typically include such programs as parent education sessions,
mediation and other court-related services.
Overall, Unified Family Courts improve outcomes for children and their families.
They have the following advantages:
- they enable family members to resolve all outstanding legal issues in a
single place by combining family law jurisdiction under both federal and provincial
law in a single court;
- they provide access to a full array of professional and community support
services, thus increasing the ability of family members to obtain the most
appropriate support;
- they employ simplified procedures in a user friendly environment;
- they are presided over by specialist judges who are experts in family law;
and
- they can speed up the resolution of family matters, and reduce the potential
for further conflict.
The Government of Canada is committed to increasing the available pool of Unified
Family Court judges by 62 (of which 46 would involve the promotion of provincial
court judges who currently hear family law cases pursuant to provincial legislation)
at a cost of $16.1 million annually. Expanding UFCs through provincial court
elevations will free up resources previously required for their salaries. Jurisdictions
will reinvest these savings on an on-going basis into family justice services
in their jurisdiction.
In addition to the Divorce Act amendments, amendments will be made to
the Family Orders and Agreements Enforcement Assistance Act and the Garnishment,
Attachment and Pension Diversion Act to make the administration of federal
support enforcement programs more efficient. For example, the Family Orders
and Agreements Enforcement Assistance Act will be amended to make it mandatory
for a debtor subject to the Act to file a tax return if the Minister of National
Revenue asks the debtor to do so. Also, the Garnishment, Attachment and Pension
Diversion Act will be amended to establish the priority of family support
obligations over other judgment debts.
The Criminal Code provisions with respect to parental child abduction
will also be amended to reflect change in Divorce Act terminology.
The Bill also includes several technical amendments to the Divorce Act respecting
jurisdiction and interprovincial variations of support orders.
Visit the Parliament of Canada Web Site to follow the status of Bill C-22.
An Act to amend the Divorce Act, the Family Orders and Agreements
Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion
Act and the Judges Act and to amend other Acts in consequence.
Until the proposed legislation comes into force, the current laws apply. Full
text of the current legislation is provided below.
Divorce Act
(R.S., 1985, c. 3 (2nd Supp.))
An Act respecting divorce and corollary relief.
Garnishment, Attachment
and Pension Diversion Act (R.S. 1985, c. G-2)
An Act to provide for the garnishment or attachment of Her Majesty in right
of Canada and for the diversion of pension benefits payable by Her Majesty in
right of Canada under certain enactments.
Family Orders and
Agreements Enforcement Assistance Act (R.S. 1985, c. 4 (2nd Supp.))
An Act to provide for the release of information that may assist in locating
persons in default and other persons and to permit, for the enforcement of support
orders and support provisions, the garnishment and attachment of certain moneys
payable by Her Majesty in right of Canada.
Judges Act
(R.S. 1985, c. J-1)
An Act respecting judges of federal and provincial courts.
Criminal Code
(R.S. 1985, c. C-46)
An Act respecting the Criminal Law
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