- Divorce Act needs more than new terminology to be effective - March 22, 2021
By Tony Poland, LegalMatters Staff • Reducing conflict in an acrimonious divorce requires more than simply changing legislative language, says Toronto family lawyer David Frenkel.
Frenkel, founder of Frenkel and Tobin LLP, says while the revamped Divorce Act includes provisions that can help ease tensions during caustic proceedings the amendments are not necessarily a panacea.
“There are clarifications within the new legislation. It focuses on children in terms of elaborating on best interest principles within the Act,” he tells LegalMattersCanada.ca. “This provides a good stimulus but it definitely is not enough. It requires discussion from practitioners who can augment the legislation with practical advice. The legislation is not enough to bring meaningful change. It requires a team effort from lawyers and the judiciary.
Divorce Act is a ‘work in progress’
“To me, it is a work in progress. It is difficult to create law that changes the world for the better,” Frenkel adds. “It requires iteration of those changes. In other words, you make the revision, you see how it applies on a day-to-day basis, then you go back and see what worked. Then you decide if you need to change more.”
The federal government moved forward with the amended legislation on March 1, announcing it marked “the first substantive changes to federal family laws in more than 20 years.”
Under the new reforms, which were slated to go into effect last July but were pushed back due to the coronavirus pandemic, the language was updated to replace such terms as “custody” and “access” with “decision-making” and “parenting time.”
“We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members,” says David Lametti, Minister of Justice and Attorney General of Canada. “Faced with the challenges presented by the COVID-19 pandemic, we worked hard with our partners to implement these changes, which address family violence and promote the best interests of the child.”
According to the government, the legislation has four key objectives:
- promote the best interests of the child
- address family violence
- help to reduce child poverty
- make Canada’s family justice system more accessible and efficient
Frenkel says much of what is covered in the Act “was already dealt with before in the courts.”
‘Basically a case of what’s in a name’
“This legislation just kind of codified it. It is basically a case of what’s in a name,” he says. “Everyone knew that custody still had to deal with the best interests of the child, but now the language is more elaborate. The government expounded on the terms within the Divorce Act.”
However, Frenkel says merely changing the terms in a custody or access battle is not enough to end the conflict.
“The goal of that was to reduce the fight, but you can argue that custody is ultimately a control issue,” he explains. “If you ask yourself, ‘What would parents really be fighting about?’ It is not the actual custody. It is the control of the child.
“Now the name is not custody, it’s decision-making. People will still fight over that under the guise of control. So, unfortunately, I don’t believe it will make that much of a difference.”
Frankel says the new legislation does a better job of defining family violence.
The government states family violence can take many forms and can harm people whether they experience it themselves, see or hear it, or know it occurs.
Family violence is defined in the Act as is any behaviour that is:
- violent, or
- threatening, or
- a pattern of coercive and controlling behaviour, or
- behaviour that causes a family member to fear for their safety or the safety of another person
Best interest of the child is paramount
“It’s part of what is in the best interests of the child,” Frenkel says. “For example, they talk about patterns of coercion and control and the emotional and psychological harm to the child.
“Much of that, again, is not new. If you look at cases before the Divorce Act was amended, you’ll find all these issues were addressed within the courts. The Act just summarizes it more succinctly,“ he adds.
Frenkel says the biggest improvement was the amendment that encourages alternative dispute resolution.
“It was always part of the process. Judges always encouraged mediation even before the change in the Act. Now it is actually in the legislation. That is good because it allows people to think about that automatically rather than hoping that the lawyer will raise the issue,” he says.
Frenkel says his firm agrees with alternative dispute resolution as a means to avoid high-conflict legal battles but he finds its use can be lacking in the profession.
“Unfortunately, some lawyers just jump to court prematurely and clients just follow their lead,” Frenkel says. “But in reality, the client should have more control over that process. Putting the mediation aspect into the Act forces lawyers to be more proactive in providing that option.”
Mediation is not always effective
However, he concedes that mediation is not always going to work.
“If you give most people an opportunity to be more peaceful, then they will. But if somebody has issues, they may still find another reason to argue,” Frenkel says.
In the end, he says it’s up to those involved to make the new legislation work the way it is intended, adding there should be more effort by the government to keep pace as society evolves.
Frenkel says bureaucrats would be better served the follow the lead of such methodologies as the Lean Startup, a scientific approach that aims to shorten development cycles and quickly discover if a business model is viable.
“The problem with legislation like this is that we shouldn’t wait 20 years to update it,” he says. “Ideally legislation should follow the Lean Startup model. Instead of making big changes and hoping it helps, the government should make smaller changes over shorter periods of time, and then monitor the effect and improve it to bring it more in line with the changes of society.
“Unfortunately, legislation does not always do that mainly because of bureaucracy but, ideally that’s the better way.”
