Legislative Background: 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 (Bill C-78 in the 42nd Parliament)

Background

A. Division of federal and provincial responsibilities for family law

Family law is an area of shared jurisdiction. The federal government is responsible for divorce and associated matters such as custody and access (parenting) and family support (i.e., child and spousal support) for divorcing or divorced couples.

Provincial and territorial governments are responsible for matters related to separating unmarried couples and married couples who separate but do not seek a divorce, as well as division of property issues related to separation and divorce. They are also responsible for the administration of justice. This includes the administration of the courts and the delivery of family justice services, such as mediation and parent education sessions. Each province and territory has laws to address both the substance of family law, including matters such as parenting and support, and the procedure of family law, such as court rules. Provinces and territories are also responsible for the enforcement of family support obligations.

There are several federal family law statutes. The Divorce Act creates a national system for divorce and provides for orders for spousal and child support as well as parenting in divorce cases. FOAEAA allows for the release of information from federal information banks, the garnishment of federal monies such as income tax refunds, and the suspension (or denial) of federal licences, including the Canadian Passport, to enforce family support obligations. GAPDA allows for the garnishment of federal employees’ salaries to enforce civil judgments, including those relating to support obligations, and the diversion of federal pension benefits to enforce family support obligations only.Footnote 3

The federal government works closely with provincial and territorial governments to promote consistency between family laws across Canadian jurisdictions. Federal family laws must also reflect Canada’s two legal traditions. While most provinces and territories rely on the common law system, Québec has a civil law system. The 2019 changes to family laws reflect these different responsibilities and legal traditions.

B. Challenges facing the family justice system

Family laws and programs are essential to helping Canadians resolve family law disputes. Federal family laws had not been substantially amended in over 20 years. They did not address a number of important issues, including, for example, family violence. In contrast, several provinces and territories have amended their family laws to better address a variety of pressing family law issues, including relocation, family violence and promoting out-of-court dispute resolution.

1. Outdated federal family laws

Federal family laws were developed to provide guidelines and rules to help families through separation and divorce and to chart the course for the ongoing care and support of children.

Family law stakeholders have been calling for updates to federal family laws for several years. One of the earliest and strongest calls for change came from the Special Joint Committee on Child Custody and Access.Footnote 4 Some of the Committee’s key recommendations included the adoption of new parenting terminology in the Divorce Act and a list of best interests of the child criteria. The Canadian Bar Association has strongly supported these recommendations.Footnote 5

There have also been calls to address the growing gap between federal and provincial and territorial enforcement legislation.

2. Access to justice

For many years, access to justice was understood simply as access to lawyers and courts. In 2013, the Action Committee on Access to Justice in Civil and Family Matters, chaired by retired Supreme Court Justice Thomas Cromwell, adopted a more “expansive vision.”Footnote 6 In an associated report, the Action Committee’s Family Justice Working Group defined the justice system as including

all laws, programs and services that meaningfully contribute to the resolution of family law issues. This includes public institutions such as the courts, government ministries, and legal aid service providers, as well as non-government agencies, lawyers, mediators and other private professionals who help families during the separation process.Footnote 7

Increasing access to justice does not necessarily mean increasing the number of matters before the court or the speed at which they get resolved, but rather increasing options for families.

There have been important calls to improve access to justice in recent years. A 2016 report by the Canadian Forum on Civil Justice, a non-profit organization that advocates civil justice reform, found that in a given three-year period, 5.1% of the Canadian adult population, or about 1.2 million Canadians, will face a family law problem.Footnote 8 The report estimated that, between 2012 and 2015, individual Canadians as a group spent $23 billion on resolving their civil and family law problems. It further estimated that the associated cost to government of Canadians’ civil and family law problems—including added costs related to social assistance, loss of employment, and physical and mental health issues—was at least $800 million annually. The report concluded that “some Canadians, particularly those with fewer resources and those who see themselves more on the margins of society, do not view the justice system as fair, accessible or reflective of them or their needs.”Footnote 9

There is a growing gap in access to justice. More and more middle-income families are ineligible for legal aid and unable to pay for lawyers. They must navigate the often-complex family justice system alone. This can contribute to entrenched conflict and financial hardship for those going through divorce or separation. Improving access to family justice, including family justice services, can help reduce or prevent some of the negative outcomes associated with separation and divorce.

3. Contentious issues in family law

Family justice professionals identify certain family law issues as being particularly contentious or difficult to resolve. For example, disagreements over relocation—moving with a child after separation or divorce—may be challenging because of the complexity of the situation itself and the lack of guidance in legislation. Some academics argue that even the language used to describe the responsibilities of parenting can fuel conflict between parents. Many have called for increased clarity in the law to better address some of these issues.

Another highly contentious issue relates to the failure to comply with income disclosure obligations for family support purposes. Lack of accurate and up-to-date income information makes it difficult to determine fair and accurate family support amounts and puts pressure on the family justice system. It also creates financial and emotional hardship for the parties involved.

Another challenge in family law relates to obtaining or enforcing family law orders when parties live in different countries. Countries’ laws and legal traditions may differ considerably, so determining which rules to apply in cross-border situations can be challenging.