JD Candidate 2019
Almost 33 years later and yet somehow the Divorce Act of 1986 still does not contemplate the particulars of family breakdown, complicated as it is by factors such as domestic violence, an unequal distribution of power, and intersecting relationships of care. Absent legislative guidance, Canadian courts have inserted their own interpretation of how to structure the family after breakdown. The results have been inconsistent and in some cases deeply troubling.
A substantial makeover is clearly overdue and it comes in the form of Bill C-78. Among the recommended amendments to the Act, Bill C-78 proposes to shift the language on post-separation childcare away from “custody,” “custody order,” and “access,” replacing these terms with “decision-making responsibility,” “parenting order,” and “parenting time.” The bill also proposes to provide guidance by including a non-exhaustive list of factors to consider in determining the “best interests of the child” (BIOC). As well, the bill acknowledges the impact of family violence by outlining a working definition to be included in the Act, and tying this definition to the BIOC.
The proposed changes are far from inconsequential; indeed, the amendments are an important step closer to addressing at least some of the concerns with the current legislation. Yet the amendments have limits, four of which I note in this post. To begin with, the transformative potential of a shift away from custody and access is likely overstated. The “highly charged” nature of “custody” and “access” is often cited as a reason to move away from these terms; however, in practice it is likely that any term that denotes a post-separation parenting arrangement of some kind will be highly charged by virtue of what the term represents. Certainly, the parent who is assigned “time” rather than “responsibility” is likely to feel they have lost.
Second, while the proposed list of factors to consider in determining the BIOC is a very positive development, without guidance as to the weight of these factors, considerable discretion still rests with family court judges. “History of care” and “family violence” should be clearly prioritized. Prioritizing these two factors in particular would increase predictability in the BIOC test, but equally important, this prioritization would require the court to first reflect on the “historical arrangement of caregiving,”  and to consider the unique day-to-day caring realities that have shaped a child’s life. Understanding the history of care, and how it has been affected by family violence provides much needed context for the proper evaluation of other factors, such as the appropriateness of asking that a victim of domestic violence facilitate a relationship between her abuser and her child.
Third, the continued inclusion of a “maximum contact principle” serves as an obstacle to determining the actual best interests of children. It also limits the usefulness of the family violence definition by continuing to emphasize that more parenting time is best, without genuinely questioning the quality of care during that time. Certainly, maximum or equal time makes sense for healthy families, in which both parents support the children and parents are able to communicate and cooperate with each other in spite of their differences.  However, this is an ideal scenario, one that does not appropriately capture the lived experiences of many families at separation. The maximum contact principle also ignores the day-to-day caring realities of children prior to and during family breakdown; the principle assumes that care distribution is gender neutral, and that all parents are capable of identifying and responding to the complex physical and emotional needs of children. Legislative reform that claims to be child-focused, and that claims to support evaluation on a case-by-case basis, cannot include a maximum contact principle.
Finally, the usefulness of a family violence definition is needlessly restricted by the lack of explicit acknowledgement of the gendered nature of family violence, or the intersecting factors at play with respect to said violence. However in this instance, given the limited ability of legislation to tackle systemic issues such as family violence, additional steps should be taken to properly attend to the fallout from divorce, steps that go beyond legislative reform. In particular, targeted education for legal professionals, especially decision-makers, should be required. This education must go beyond simply explaining typologies; it must explain gender-based violence, intersectionality, and the compounding effect of different relationships of power and what this means in the context of family violence. This education should also draw support from genuine consultation, should connect practice to real life, and should dispel myths and over-simplifications with respect to family breakdown. Moreover, this education should provide a deeper understanding of the relationships of care that shape the social, psychological, and legal lives of clients and their children.
In its current form, Bill C-78 is a positive step, but substantive change requires a more nuanced and holistic approach to family law than is currently contemplated.
 See e.g. Ulloa v Ulloa, 2016 MBQB 132 at paras 107–109 [Ulloa] wherein the Court ordered shared parenting and joint custody to “break the chains of fear and worry” in the children because of their fathers’ violent behaviour; EH v DM, 2018 PESC 38 at paras 58–61 wherein the Court ordered joint custody (albeit not shared parenting) in spite of the fathers’ violent behaviour towards the mother because it was determined that the children needed to see their father.
 “Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”, House of Commons Debates, 42-1, Vol 148 (22 May 2018) at 19427 (Hon Jody Wilson-Raybould) [May Debates].
 Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, 1st Sess, 42nd Parl, 2018 cl 1(7) (third reading 6 February 2019) [Bill C-78].
 Ibid, cls 1(7), 12.
 This point is also noted by Brenda Cossman in her 2001 report for the Department of Justice. Department of Justice Canada, An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access, by Brenda Cossman, Catalogue No 2001-FCY-2E (Ottawa: Family, Children and Youth Section, 2001) at 6.
 Susan Boyd, “Fathers’ Rights and Women’s Rights Advocacy” in Rosemary Hunter, ed, Rethinking Equality Projects in Law: Feminist Challenges (Portland, OR: Hart Publishing, 2008) 59 at 59.
 Nicholas Bala, et al, “Shared Parenting in Canada: Increasing Use but Continuing Controversy” (2017) 55:4 Fam Ct Rev 514 at 524.
 Boyd, supra note 6 at 68.