Bill C-78 could bring ‘positive change’ for children
By AdvocateDaily.com Staff
Children in Canada will be better protected from the conflict generated by divorce proceedings if changes introduced by the federal government in May become law, says St. Catharines family lawyer Sharon Silbert.
Bill C-78, which amends the Canada Divorce Act, would not only compel lawyers and paralegals to encourage clients to use family dispute resolution processes in most cases, it would also require parents to protect their kids from any conflict arising from litigation, says Silbert, principal of Sharon B. Silbert Professional Corporation.
“The changes that are being proposed have the potential to make a positive impact,” she tells AdvocateDaily.com.
Silbert, whose practice has focused exclusively on out-of-court resolution of family law issues for the past six years, says the inclusion of these measures in the bill means that legislators are recognizing that litigation can cause a tremendous degree of strife, which is detrimental to kids.
Experience has taught her that many separating couples set off on the path to litigation without realizing how much negativity it can generate. The vast majority end up settling before trial, but by then the damage is already done, she says.
“The difficulty is that often people have to go through many of the steps in the litigation process before they’re ready to resolve things. I suspect one of the objectives of the proposed changes to the Divorce Act is to increase the likelihood that people will realize it’s going to be better for their kids if they can come to a resolution on their own,” Silbert says.
The bill recognizes that there are obvious exceptions where a negotiated settlement is not appropriate — for example when there are control issues or family violence, she adds.
Silbert says she has mixed feelings about whether courts should be empowered to compel parties to attempt conflict resolution, as proposed in the bill.
“The voluntary nature of mediation and collaborative family law is part of what makes the processes work,” she says. “I’m not sure that forcing people to go through the motions will significantly increase the number of files that settle. But as long as the power is exercised with discretion, having that in the judge’s back pocket as an option could help to legitimize the dispute resolution processes.”
The bill also broadens the obligations of lawyers beyond informing clients of their negotiation and mediation options — they will also have to tell them about family justice services intended to help people deal with issues arising from divorce, which could include psychological counselling and financial planning, says Silbert.
“Family justice services is a new term defined in the bill,” she says. “It’s broad, but it’s a reminder that there is more to dealing with family law than just making decisions about disputed issues. The people involved ultimately have to live with the results, and separation takes place not only on a legal level but also on emotional and financial levels.”
The section of Bill C-78 dealing with lawyers’ obligations may be challenging to enforce, Silbert says.
“We need to have realistic expectations. The bill contemplates having lawyers certify in documents filed with the court that they’ve complied with the section, so that would be one way of making sure, at least to a degree, that it’s actually happening. But an imperfect solution is better than no solution.”