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Advocacy Practice Areas Family

FOLA’s Submission to MAG on Amendments to the Divorce Act

Jan 16, 2020 Modified: January 6, 2024

“The Voice of the Practising Lawyer in Ontario”
Submitted to: Doug Downey, Attorney General
Ministry of Attorney General
McMurtry-Scott Building
720 Bay Street, 11th Floor
Toronto, ON M7A 2S9
Submitted on: Thursday January 16, 2020
Submitted by:
Sam (Rasim) Misheal
Family Law Chair, FOLA
Thank you for providing this opportunity to FOLA to provide comment regarding the
Ministry of Attorney General on amendments to the Divorce Act.
The Federation of Ontario Law Associations (FOLA), is an organization that represents
the associations and members of the 46 local law associations across Ontario.
Together with our associate member, The Toronto Lawyers Association, we represent
approximately 12,000 lawyers, most of whom are in private practice in firms across
the province. These lawyers are on the front lines of the justice system and see its
triumphs and shortcomings every day.
This Report serves as FOLA’s views and comments regarding the changes made to the
Divorce Act, and adopting same within the provincial legislation.
Michael Winward, Chair
William Woodward, 1st
Vice Chair
John Krawchenko, 2nd Vice
Chair, Central South Region
Jaye Hooper, Past Chair
Jane Robertson, Treasurer
Nathan Baker, Central East
Region Chair
Sam Misheal, Central West
Region Chair
Kristin Muszynski, East
Region Chair
Brigid Wilkinson, Northeast
Region Chair
Rene Larson, Northwest
Region Chair
Terry Brandon, Southwest
Region Chair
Anna Wong, Toronto
Lawyers Association
Sam Misheal, Family Law
Eldon Horner, Real Estate
Merredith MacLennan,
Real Estate Co-Chair
Katie Robinette, Executive
Kelly Lovell, Executive
“The Voice of the Practising Lawyer in Ontario”
In response to the Ministry of Attorney General’s request for FOLA’s views on the
recent amendments made to the Divorce Act, FOLA has consulted with our members in
order to make meaningful observations and submissions on both consultation papers.
Many of our members are professionals who specialize in family law either exclusively, or
as part of a broader general practice. FOLA respectfully submits that the recent
amendments made to Bill C-78 would impact separating and divorcing families throughout
Ontario and other provinces.
It is trite to note that separation is often an emotional and stressful time. A system that
addresses the best interests of children would attempt to alleviate the turmoil of separation for
children and parents alike. There is no doubt that the recent changes to the federal Divorce Act will
reshape, reform, and provide clarity with respect to what is in the best interests of the child,
addressing concerns relating to domestic violence, updating parenting terminology, and
encouraging the use of family alternative dispute resolution processes in certain circumstances.
FOLA respectfully submits that the recent Bill C-78 amendments to the Divorce Act
should be largely incorporated into the Ontario Children’s Law Reform Act in order to
protect and provide a guiding path with respect to families that are affected by separation.
FOLA further submits that any reference made to the “child of the marriage” pursuant to
the Divorce Actshould just read “child” in the Children’s Law Reform Act, and any reference
to spouse should just read “parent”.
“The Voice of the Practising Lawyer in Ontario”
Question # 1: Views on how Ontario should be aligned to the changing references to child
“custody” and “access”?
FOLA is of the view that the definitions used in Bill C-78 should be adopted in the
Children’s Law Reform Act: namely, “parenting order”, “parental decision making”,
“parenting time” and “contact order”. The new terminology encompassed in “parenting
orders” will certainly reflect the cultural change that has been witnessed in the past couple
of decades and it is a welcome step away from the adversarial approach towards a childcentered approach that promotes cooperative problem solving.
Furthermore, FOLA is of the view that the terminology must be adopted in other
provincial legislation that refers to the terms “custody” and / or “access”, such as s. 112 of
the Court of Justice Act, Child, Youth Family Service Act, and Family Law Act to ensure
The Divorce Act and the provincial legislation anticipates family break-ups, and
consequently a potential disagreement about “parenting orders”. The recent amendments
to the “parenting orders” under s. 16.1 to 16.5 provide the courts with a mechanism as to
how the court should make parenting and contact orders. FOLA’s view is that the updated
terminology should be adopted within the Children’s Law Reform Act.
Moreover, FOLA is of the view that the Children’s Law Reform Act should also be
consistent with the Divorce Act. Under s. 16.1 of the Divorce Act, a person wishing to have
a decision-making responsibility as described in paragraph (1)(b), may make an application
under subsection (1) or (2) only with leave of the court. As it currently stands, the Children’s
Law Reform Act permits anyone to apply for “custody” of a child without the necessary
vetting step of having to apply for leave.
“The Voice of the Practising Lawyer in Ontario”
Question # 2: Should the province add new requirements in relation to family dispute
resolution processes;
The Children Law Reform Act and the Family Law Act do not define dispute
resolution or set out any guidelines to dispute resolution process. While dispute resolution
mechanisms have been a welcome step in family law in the last ten or so years, one must
proceed with caution given that they are not appropriate in certain circumstances, such as
when there is power imbalance between the parties, and / or domestic violence.
FOLA is also of the view that any amendments to the Children’s Law Reform Act or
the Family Law Act should take into consideration that dispute resolution mechanisms
would not be appropriate in some circumstances, some examples include, when the case
is urgent, where one parent absconds with the child and immediate intervention is
required, where there are limited financial resources, or when an undertaking or bail
recognizance prevents one individual from having contact with the other.
Furthermore, FOLA is of the view that the province should define dispute resolution
and consider adopting the language used in s. 7.3 (family dispute resolution process) and
s.7.7(2)(a) (duty to discuss and inform) of the Divorce Act, but not make dispute resolution
mechanisms universally mandatory given the concerns outlined in the paragraph above.
However, in circumstances where the Court deems it appropriate, an Order can and should
be made to compel the parties to engage in dispute resolution mechanisms.
Question # 3: FOLA’s views on amending/expanding the best interests of the child test.
There is no dispute that every family law case must be decided on its own merits
and the best interest of the child is paramount from beginning to end. Some parents are
able to reach an agreement without any trouble while others appear to view a
“The Voice of the Practising Lawyer in Ontario”
“custody/access” proceeding as a competition wherein the only goal is winning, without
any consideration of what is in fact best for the child.
While the Children’s Law Reform Act provides guidance under ss. 24.(1), it is FOLA’s
view that the current test under this Act is too simplistic and provides little guidance to
parents in reaching an agreement. It is FOLA’s view that the province should adopt the
entire “best interest test of the child” as set out in ss.16(1) to (7) of the Divorce Act to
ensure consistency, and additionally provide a comprehensive and non-exhaustive list of
factors to be taken into consideration.
Question # 4 : Should the province add a new definition in relation to family violence?
Neither the Children’s Law Reform Act nor the Family Law Act define “family
violence”. It is FOLA’s view that the province should adopt the definition used in the Divorce
Act as this definition is comprehensive and addresses the apparent gaps in the current
Question # 5: Should the province add a legislative test to apply in child relocation cases?
There is no doubt that mobility (child relocation) is a very contentious topic. While
the decision by the Supreme Court of Canada in Gordon v Goertz sets out factors to be
considered in child mobility cases, it is FOLA’s view that the province should adopt the
changes outlined in the Divorce Act with respect to “Change in Place of Residence”. We
believe it is of utmost importance to remain consistent with the Divorce Act so as to avoid
having two separate regimes for dealing with child relocation: CLRA/FLA cases under
Gordon v. Goertz and Divorce Act cases under “change in place of residence.”