Province is moving forward to simplify ‘outdated’ family law system

By Tony Poland, LegalMatters Staff • An amendment to Ontario’s Family Law Act to bring it in line with the federal Divorce Act is a positive step that delivers clarification, says Toronto family lawyer A. Julia P. Tremain.

Bill 207, the Moving Ontario Family Law Forward Act, 2020, was introduced in September. If passed, it “will help simplify an outdated and complex family law system by modernizing language, simplifying appeal routes and improving the online child support service,” according to an Ontario government release.

“One of the things that we as lawyers are welcoming is the change in the use of language. Moving away from terms like ‘custody’ and ‘access’ and toward ‘parenting’ and ‘shared decision-making,’” says Tremain, a partner with Waddell Phillips Professional Corporation. “That’s really quite huge. Access and custody are things that can be given or taken away. 

Open to misinterpretation

“If you are the person who has primary residence of the child and you are giving the other parent access, it feels as though that person can give or take away that access. That may not be the reality but that’s the impression the language gives.”

She tells LegalMattersCanada.ca the present language in the law can make it seem as if “access time is almost a lesser amount of time.”  

“If you think about it, if the primary parent says the child is going to live with them and the former partner is to have access every other weekend and one night a week, that other parent may believe their time is somehow doled out,” Tremain says. “It’s going to feel as if it is secondary time.

“When it’s parenting time as proposed by Bill 207, it’s the two parents deciding what that is going to look like,” she adds. “If they sit down together and figure out what each person’s parenting time is going to look like, that’s a very different kind of conversation.”

Tremain says while it is unlikely the amendment is going to have an effect on high-conflict couples, the language revisions should have a positive impact.

“Changing the terminology doesn’t necessarily change the law but it changes people’s mindsets, which is important,” she says. “Access is a loaded term. Custody is a loaded term.

‘Loaded terms’

“When people are talking about separation, they can start using language that doesn’t have these loaded terms.”

In announcing the legislative amendment, Ontario Attorney General Doug Downey said, “Families encounter the family law system in some of life’s most difficult moments, and the changes we are proposing will make the process easier to navigate and understand for parents and their children.

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“Comprehensive action to advance family law is a critical part of any conversation around moving our justice system forward for Ontarians,” he said. “We’re proposing common-sense changes to simplify Ontario’s family law system, allowing parents and guardians to spend less time on paperwork and court appearances and more time making plans to support and care for their children.”

If passed, the bill will:

• Make the family law appeals process clearer and easier to navigate by clarifying when and how to appeal family law cases, help families reach final decisions faster in difficult cases, and make the appeals process more consistent no matter where their trial is heard.
• Align Ontario’s family laws with federal changes to the Divorce Act.Changes include modernizing language around the terms custody and access, so they are consistent, clearer and more streamlined.
• Allow parents and caregivers to obtain certified copies of child support notices from the online child support service so support amounts can be more easily managed or enforced outside the province.

Tremain explains that family law proceedings will be consistent across the courts once the bill becomes law.

“The process can be confusing to litigants. There are different languages in different courts and people don’t necessarily understand that there’s different legislation applying,” she says.

While Bill 207 works its way through the legislative process, last summer’s introduction of the revised federal Divorce Act was delayed until March 1, 2021, because of the coronavirus pandemic.

Important change

Tremain notes one important change to the Act concerns mobility issues, which will clarify the factors, in addition to the best interests test, that a Court must consider in the event that a parent wishes to relocate with a child.  

“We have yet to see how it’s going to play out, but it is supposed to make it easier to understand whether people can move with the children. The law is a little all over the place right now. Those are some of the most contentious cases.”

Tremain says Bill 207 should have a positive impact on family law.

“The law, by and large, is the same. It is just a different way of describing it. From a philosophical perspective, the language is less confrontational and less conflicted,” she says. “Most of us have been using this terminology for years so it is absolutely welcomed.”