Strengthening Canada’s Family Justice System: Bill C-78 and what it means for Canadians and Legal Professionals

Notes for an address by: The Honourable Jody Wilson-Raybould, PC, QC, MP Minister of Justice and Attorney General of Canada

Notes for an address by:
The Honourable Jody Wilson-Raybould, PC, QC
MP Minister of Justice and Attorney General of Canada

National Family Law Program
Vancouver, Canada July 10, 2018

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Gilakas’la. Good afternoon. Thank you, Trudi, for that kind introduction.

My name is Puglaas and I come from the Musgamagw Tsawataineuk and Laich-Kwil-Tach people of Northern Vancouver Island. I would like to acknowledge that we are here today on the territories of the Musqueam, Squamish, and Tsleil-Waututh peoples and I would like to welcome all of you to beautiful Vancouver.

Let me start off by thanking the Federation of Law Societies of Canada for hosting and organizing this impressive 2018 National Family Law Program. These types of events are very important because they truly help to shape our family justice system, a system that we all know touches more Canadians than any another field of law.

It is my pleasure to be here today, and to participate in this important dialogue. In particular, I am grateful for the opportunity to speak with you about Bill C-78, our Government’s family law bill, which I introduced in Parliament earlier this year.

As it is well known, when the Prime Minister appointed his Ministers, our mandate letters were made public. And I am pleased to say that I have pretty much completed – or have well under way – each task that I was given. Some of these tasks have been more publicized than others – medical assistance in dying, the appointment process for superior court justices, cannabis legalization, & reform to our justice system including cleaning up the Criminal Code.

Specifically with respect to family law, my mandate letter instructed me to expand Unified Family Courts across the country – further, and while not specifically in my mandate letter, we have forged ahead with major, necessary and long-overdue family law reforms, reforms that have been based on extensive input, and to be up front, has also been a personal commitment of mine. I am excited to see our bill make its way through the parliamentary process.

So, I have been looking forward to today, and the opportunity to share, with so many family justice professionals, our vision for modernizing and improving family law practices and outcomes. I am excited to discuss the role all of you will play in successfully realizing this vision. I particularly look forward to listening to the panel discussion after my remarks.

As many of you know, this proposed legislation is aimed at strengthening our family justice system. It will do so by amending three federal laws -- the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, and the Garnishment, Attachment and Pension Diversion Act. This will be the first substantive change to our family laws in over 20 years.

I am incredibly proud of the amendments that we are bringing forward in Bill C-78. Separation and divorce can be difficult for families, especially for children. Over two million children in Canada live in families with separated or divorced parents.

Perhaps like many of you, I have parents who divorced when my sister and I were very young and we all know countless others who have been affected. Fortunately for my sister and I, our parents were very cooperative; sadly however this is not always the case. The break-up of families is tremendously challenging – and, in my own community, the break-up of Indigenous families and determining what happens to the children can be even more so.

Bill C-78 will have a profound and positive impact on all who are involved – either directly or indirectly – in family law matters.

Before addressing the bill in a bit more depth, I would like to acknowledge the important and excellent work that my provincial and territorial counterparts and their officials do in the area of family justice…and for their leadership on these issues. As you all know, the provinces and territories are central to an effective family justice system as the delivery of family justice services falls within their respective jurisdictions.

Also, I was pleased that in Budget 2017 our Government committed $16 million per year, on an ongoing basis, to support the delivery of family justice services, and to help improve Canadians’ access to family justice.

Further, as mentioned our Government has also committed, through Budget 2018, the funding to create the necessary judicial positions to allow for the expansion of Unified Family Courts in Alberta, Ontario, Nova Scotia and Newfoundland and Labrador. This is significant and I suspect more jurisdictions will follow suit.

Since the beginning of my mandate and as part of our overall justice reform, I have been working hard toward this goal of expanding Unified Family Courts, and I am very pleased to see it coming to fruition. I think we can all agree that these courts create more effective and efficient resolution of family law matters by allowing a single superior court judge, with expertise in the area, to hear all issues in a family law proceeding.

On broader family law reform, as mentioned, we have been listening attentively to the conversations taking place throughout the family justice community, including the insightful points that so many of you here today have raised. The expansion of Unified Family Courts and Bill C-78 are very much the product of these important conversations.

I would like to now turn to Bill C-78. In doing so, I will address each of the bill’s four objectives in turn.

First, the transformative changes proposed to the Divorce Act are squarely focused on promoting the best interests of the child. These include changes to the best interests of the child test, changes to terminology, and a proposed framework for relocation.

Second, I will discuss changes to address family violence.

Third, I will outline the proposed amendments to federal family laws intended to support our Government’s efforts to reduce child poverty.

Finally, I will touch on some of the proposals aimed at increasing access to justice and creating efficiencies.

Promoting the Best Interests of the Child

As I have said, Bill C-78 is really all about putting the child first. Something that as an Indigenous person, and working on family law matters within Indigenous communities I know something about.

As I mentioned earlier, although separation and divorce can be hard on all involved, it is often hardest on children.

For all Canadians, the best interests of the child must continue to be a fundamental principle in family law to ensure that we protect and support our most vulnerable. Accordingly, Bill C-78 reaffirms that the best interests of the child is the only consideration in relation to parenting arrangements, and makes several changes to further emphasize this important principle of law.

The amendments introduce a non-exhaustive list of criteria regarding the best interests of the child. As you know, nearly all provincial and territorial family law statutes include such a list. It is long past due for the Divorce Act to include this critical component, to help courts and lawyers, but most importantly parents and unrepresented parties, who will be able to look to the Act for guidance.

Bill C-78 introduces a “primary consideration” to the best interests of the child test. It will require courts to consider a child’s physical, emotional and psychological safety, security and well- being. The primary consideration will be the lens through which all other best interests criteria will be evaluated.

The changes also consider a child’s linguistic, cultural and spiritual heritage and upbringing – which includes Indigenous heritage, something that is currently absent from the Divorce Act.

One criterion I would especially like to highlight addresses the voice of the child. It would require courts to consider a child’s views and preferences, giving due weight to the child’s age and maturity. This criterion is consistent with Canada’s obligations under the United Nations Convention on the Rights of the Child.

There are many ways for children’s views and preferences to be brought into the family justice system, including in dispute resolution processes. I also want to emphasize that this is not about putting children in the middle of a high-conflict situation. It is about giving children a voice. These changes are about the best interests of the child – and that means we need to hear from them and consider their perspectives.

Changes in Terminology (Parenting Language)

This bill also proposes several other additional changes that promote the best interests of the child. One of the main ones is the proposed change to parenting language.

Specifically, the Divorce Act would no longer use an approach based on “custody” and “access,” but would instead allow for “parenting orders” that would allocate “decision-making responsibility” and “parenting time” – language which is less adversarial. These parenting orders would be based only on the best interests of the child.

Of course, there are often others in a child’s life who play a critical role in supporting their well-being. To address this reality, the bill makes “contact orders” available to non-spouses, such as grandparents, in situations where they do not otherwise have access to the child. Contact orders would likely not be needed in most cases, but would be available as an option. This would ensure that important people in a child’s life would have a specially designated time with a child, if the parties could not agree to schedule it during a party’s parenting time. Again, these orders would be based solely on the best interests of the child.

As part of our goal to help families resolve disputes quickly and effectively, the Bill encourages the use of parenting plans, which could be incorporated into a parenting order. The Department of Justice has an online Parenting Plan Tool, to help people draft these plans. I would also welcome your thoughts on this tool.

Parenting Time

In keeping with our commitment to promoting the best interests of the child, Bill C-78 will not create parenting presumptions in the Divorce Act. The Bill includes a modified “maximum parenting time” principle. There would also be a best interests criterion considering each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.

However, our Government believes that the best interests test is the only test flexible enough to allow parents and courts to tailor parenting arrangements to the specific needs of each individual child.

Relocation

With respect to the issue of relocation and the best interests of the child, we all know this is one of the most highly litigated issues in family law. We have heard your calls for reform. Accordingly, we are putting forward a framework for relocation that will promote children’s best interests and encourage dispute resolution.

The framework proposed in Bill C-78 includes clear rules on notice requirements, a list of best interests of the child criteria for relocation cases, and burdens of proof based on existing parenting arrangements. While these will always be difficult cases, these amendments will provide guidance and help facilitate the resolution of disputes.

Family Violence

Turning now to the second objective of the bill – addressing family violence – an area of great importance to me and to our Government. Whether children are direct victims of violence, or witnesses to it, family violence is traumatic. Neurobiological research is providing us with important insights into the life-long effects of childhood trauma. It is essential for parenting arrangements to take family violence into account in an appropriate manner.

The Divorce Act can – and must – provide guidance to parents, courts and family justice professionals in situations of family violence.  Therefore the bill proposes a statutory definition of family violence that is based on social science research. For instance, while recognizing that not all family violence is the same, the bill draws courts’ attention to coercive and controlling violence, which is known to be particularly insidious and dangerous. It explicitly includes family violence as a factor to be considered in determining the best interests of the child, and it includes an additional set of factors for courts when considering the impact of family violence.

Finally, it requires courts to ask about any other civil protection, child protection, or criminal proceedings or orders that involve the parties, so as to avoid a situation where, for example, contact or parenting time ordered by a family court conflicts with an order made by a criminal court.

These amendments are intended, first and foremost, to help protect family members from violence. They will assist courts in crafting safe and appropriate parenting arrangements in cases where there has been family violence.

Reducing Poverty 

The third objective of the bill is with respect to reducing poverty. In addition to the emotional, and even physical, toll that divorce and separation can take on families, there is the financial strain that it causes. We all know the financial cost to parents of separation: establishing two homes, adjusting work schedules, duplicating expenses, and I could go on. I personally have friends who have lost their homes and their savings following separation, or have had to move from their community. This can contribute to the number of Canadians living in poverty, which our Government is committed to addressing through a number of different mechanisms – the centerpiece of which is the Canada Child Benefit.

Over one million Canadian children of separated or divorced parents live in a single-parent family. And single-parent families – which as you all know are more often led by women – are more likely to live in poverty. We know that poverty can lead to a wide range of adverse outcomes for children. Ensuring that parents and children are receiving the financial support that they are owed can help to reduce the risk of poverty following a separation or divorce. There are billions of dollars in unpaid child support payments in Canada and we need to do something about it – parents have to meet their obligations – and children must get the financial support to which they are entitled. Accordingly, with Bill C-78, we are giving provinces, territories, and individuals more tools to ensure that those obligations are being paid and enforced.

Proposed Amendments to Federal Enforcement Legislation

There have been calls for this type of reform for many years and we believe that this change will have an important impact.

For example, amendments to the federal enforcement legislation (FOAEAA) will allow for the release of income tax information to courts and provincial child support services to help determine fair and accurate support amounts.

We are also proposing amendments to the federal garnishment legislation (GAPDA) to improve the current processes for garnishing federal salaries and diverting federal pension benefits to satisfy support obligations. Specifically, these changes will allow for earlier interception of salary where possible, so that families can receive funds more quickly.

Making the Family Justice System More Accessible, Streamlining Procedures and Encouraging Family Dispute Resolution

Finally, Bill C-78 includes measures intended to streamline processes to help make family justice more accessible and affordable for Canadians, while encouraging family dispute resolution.

We all know there are more and more self-represented litigants in the family justice system. We know that in some jurisdictions, as many as three quarters of family law litigants are representing themselves in court. This bill provides additional guidance, information and tools to support families through this process.

Bill C-78 will enable administrative services to determine initial child support amounts. It will also allow for administrative recalculation of child support at the request of either parent, rather than on fixed dates or at regular intervals. These changes will make the establishment and recalculation of child support faster, less costly – and perhaps most importantly – less adversarial.

One of the measures proposed in the bill will encourage parties to use family dispute resolution options such as mediation and collaborative law. I do not have to tell you that these processes are generally less expensive, can help families come to agreement faster, and allow parents to play a more active role in crafting appropriate agreements for their families.

To ensure that parents know their options and are encouraged to use alternative dispute resolution mechanisms, under our proposed changes, lawyers will have a duty to tell parents about family justice services that could be of assistance and to encourage them to try family dispute resolution where appropriate.

Courts will also have the option of referring parents to family dispute resolution where available. However, all provisions related to family dispute resolution would allow for exceptions. If there are, for example, concerns about significant power imbalances, dispute resolution would not need to occur.

I know I am speaking to the converted. You recognize the critical role that family justice professionals play in encouraging your clients to consider out-of-court options. For you, the proposed new obligations for lawyers likely reflect your existing practice: informing your clients about family dispute resolution and encouraging them to attend family justice services, such as parent information sessions.

With Bill C-78 we are, in many ways, enshrining in law what many of you are already doing. We are trying to effect a real culture shift in the family justice system. We hope that you, as leaders in the family justice system, can help champion these efforts. Those of you who work with clients on a day-to-day basis have an opportunity to facilitate and implement these significant changes from the ground up. Collectively we can and will change the culture.

Conclusion

So in conclusion, we all know how difficult separation and divorce can be for families and that children often suffer the most. That is why so much of what we are proposing under Bill C-78 is focused on reducing conflict and helping families find timely, lasting solutions.

The changes we have brought forward reflect a number of calls for reform that you – the family justice community – have been urging for many years. Some of you have written to my office or have spoken with me or my officials and staff. Some of you have expressed your views through the survey of lawyers and judges that the Department of Justice administers with the kind support of the National Family Law Program. These survey results form part of the information that we considered in developing these family law reforms.

If you have not already done so, please take a few minutes to fill out our survey.

Bill C-78 has only just begun its journey through Parliament. Many of you, either individually or through professional associations, have already provided input or expressed support. Your views are incredibly valuable: please continue to make them known.

We all have a role to play in helping families through separation and divorce. I know how important your role is, and I value your contributions tremendously. We have already made great strides in advancing access to family justice, but there is much more to be done.

As Canadians we are at our best and contribute most when we know we live in a caring and compassionate society. When we come face-to-face with the law, we expect there to be fairness and due process. This is perhaps most pronounced when it comes to our family justice system and its profound impact on so many Canadians at some point in their lives. When families are in crisis, our children’s futures, and therefore our country’s future, is at stake. Reform in our family justice system is long overdue, and I am very honoured to be a position to try and do something about it.

And with your support and continued guidance we will.

Thank you again for all that you do. Gilakas’la.