A Long Time Coming: Two Important Changes to Divorce Act

The amendments to the federal Divorce Act came into force March 1, 2021 which marked long overdue changes to a piece of legislation that has not been significantly amended in more than thirty years.

The change that I believe will impact the most on a day-to-day basis in my capacity as a family lawyer was finally getting rid of the terminology of custody and access. British Columbia brought in its current family law legislation in 2013 and was ahead of the times in the shift away from this language. It’s about time that now the federal legislation has followed suit.

A change in language may not seem like a significant change, however unfortunately good old custody has become quite the albatross in dealing with parties going through separation in crafting their parenting plans. The words “custody” and “access” has over time become both emotionally loaded and meaningless.
When a new client comes through the door and declares that they want “sole custody!” I always ask, “What does that mean to you?” Usually they do not have a clear idea of what it means but somehow a conception that in achieving sole custody they are deigned to be the most important or better parent, or the one who will have the final say in parenting disputes.

I try and reframe the conversation with more neutral language of putting in place a parenting plan that is focused on what will work the best for their kids instead of equating their worth as parents on a perplexing label. Now, both the Divorce Act and our provincial legislation in British Columbia have language that is helpful in reframing this conversation and I can just tell clients, “We don’t use that word or concept anymore.”

“Parenting time,” as opposed to custody, focuses on the parent-child relationship and a consideration of what the plan will be for the child (i.e., how much time they will spend with their child in their care and what will that plan look like). Words are powerful and shape the way we think about our relationships.

My other favourite part of the new legislation is the emphasis on family dispute resolution processes. It represents the results of a discussion that has been happening in the family bar and in the culture more generally to broaden the context and view on how we resolve disputes for families. Family dispute resolution used to be called “alternative dispute resolution” and was seen as the alternative to court, with the court process as the default. I believe we are now on our way to seeing court options as the alternative in family disputes, particularly in parenting disputes and where there are children involved. The old Act did have reference to a lawyer’s duty to have this discussion with their client, however, it was much less specific or exhaustive and simply referenced mediation and negotiation. Now collaborative law has been added in and recognized as a viable option for resolution.

It remains to be seen how much difference these two changes will make in the way we practise as family lawyers and in the way the broader culture supports families going through the transition of a separation. However, it is a long overdue and positive step to recognizing that these difficult issues should be approached through a child-centred lens.

This article was originally published by The Lawyer’s Daily part of LexisNexis Canada Inc.

Leneigh Bosdet is a partner at Pushor Mitchell LLP in Kelowna, B.C. and practises exclusively in family law. She has an emphasis in her practice on out of court resolution. Bosdet is the chair of the Okanagan Collaborative Family Law Group and is the 2020-2021 president of the Okanagan family law section of the B.C. bar association.

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