The Divorce Act Changes Explained

Duties – Legal Adviser

Duty to discuss and inform
(Section 7.7(2), Divorce Act)

New section

Duty to discuss and inform

(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

  • in resolving the matters that may be the subject of an order under this Act, and
  • in complying with any order or decision made under this Act; and
(c) to inform the person of the parties’ duties under this Act.
Old section

Idem

(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

What is the change

The amendment clarifies that legal advisers have new specific duties and obligations under the Act. Legal advisers must

Reason for the change

In most cases, family dispute resolution processes tend to be faster, less expensive and more effective than court proceedings. They are also more likely to serve the interests of the child. A greater variety of such processes are available than ever before, including mediation, negotiation and collaborative law. The phrase “it would clearly not be appropriate” means that legal advisers do not have to encourage family dispute resolution in some situations, such as when family violence poses safety risks.

While family justice services vary across Canada, they can help the parties resolve issues related to divorce and separation, and help them comply with orders made under the Act. The Justice Canada website has information about public family justice services across the country. This can assist legal advisers in discharging their duty to inform clients about family justice services.

It is also important for legal advisers to inform their clients about the client’s duties under the Act. This will help ensure that the parties are aware of their obligations.

The obligations on legal advisers apply in all proceedings under the Act, including divorce, corollary relief and variation proceedings.

When

March 1, 2021.