Tuesday, June 19, 2018 By Robert Harvie
The unveiling of Bill C-78 received almost uniform praise from the media and legal profession as the “first major amendment of the Divorce Act in 20 years.”
My own opinion is less effusive. Perhaps it’s the cynicism of a lawyer who has been working in family law for 32 years. Having sat as a bencher with the Law Society of Alberta, and in fact, chaired their Access to Justice Committee for two years, I have seen much promise and very little delivery in improving access to justice. As a result, I opened up the 190 pages of Bill C-78 with less optimism than many of my colleagues.
To be candid, the current hoopla over C-78 seems eerily similar to the excitement over the maiden voyage of the Titanic:
“The White Star Liner Titanic, which left Southampton for New York yesterday on her first Atlantic voyage, surpasses in size and luxury, but especially in luxury, anything else afloat, if not also the Waldorf-Astoria and the Royal Automobile Club. … Squash racquets courts, Turkish baths, gymnasium, swimming bath, electric passenger lifts, reception rooms, Ritz-Carlton restaurants, concert halls, Parisian cafés ‘in French trelliswork with ivy creepers,’ parlour suites with private promenade decks — could anything be much more foreign to old-fashioned people’s ideas of a sea voyage?”
(Manchester Guardian, editorial, April 11, 1912)
From the perspective of passengers not thinking about an impending iceberg and the lack of adequate numbers of life boats, these “improvements” no doubt appeared impressive. But from the perspective of the fundamental need of those passengers to travel safely and securely from Southampton to New York, in hindsight we can see these improvements were scant comfort when those needs were challenged.
So too, in my opinion, is Bill C-78.
It’s a sexy, attractive new package to be sure.
As with the above Titanic editorial, the media and most in the profession seem impressed with the “new changes,” without considering in any depth, what C-78 actually does.
My favourite, from Global News: “Getting divorced? Battles over ‘custody’ could be a thing of the past with divorce reforms.
Overstate things much, Global?
As already pointed out by David Frenkel in this earlier article in The Lawyer’s Daily on Bill C-78, changing the description of the battle between parents from “custody” to “decision-making responsibility” will not change the fundamental argument between parents over “control” of their children.
I would go further and suggest most of Bill C-78 is an expression of “good intention” without sufficient substance to accomplish real change.
Yes, Bill C-78 affirms by amendment to s. 7:
“To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.”
Bill C-78 also affirms the obligation of litigants to affirm, in writing, that they have been advised as to their obligations to act in the best interests of their child, to protect children from conflict, to try and resolve matters through a family dispute resolution process (to the extent it is appropriate), to provide accurate and up to date information required and to comply with orders.
But most family lawyers can recite scores of cases where they have implored the need for clients to consider conciliatory efforts, only to have the clients ignore that advice in favour of asserting their “rightness.”
At its core, Bill C-78 is devoid of change to the overall resolution process — which, fundamentally, is the problem. Bill C-78 touches on none of the following issues:
Lawyers charge too much money for the majority of Canadians to protect themselves in litigation, complicated by a notion endemic in the profession and reinforced by our judiciary and law societies, that it’s safer to overdeliver than underdeliver legal service.
Law societies appear focused on the “fetish” of reducing complaints by increasing “proactive measures” to regulate lawyers (see “make legal services more, not less, expensive”).
Litigation is an antiquated and cumbersome process which often facilitates resolution by creating so much expense and delay that it just wears the litigants down, emotionally and financially, until they just sort of put up a white flag and give up.
While we uniformly acknowledge how damaging and inappropriate litigation is to resolve family disputes, at the same time, funding and support for alternate forms of resolution is so scant as to be almost nonexistent, while the funding for the litigation machine only grows.
Finally, family litigants are often emotionally damaged and are giving instructions from a handicapped perspective, where their lawyers are either oblivious to that handicap, or at best, underequipped to effectively facilitate assisting their clients in “finding their highest selves” at a time where that is so important.
Also noted is that Bill C-78 is 190 pages long. The current Divorce Act is only 41 pages long. As self-represented litigants now comprise 80 per cent of the parties before many courts, one might reasonably ask how they will navigate through legislation that is over four times longer than the previous version — which was already difficult for a nonlawyer to digest.
So. My take?
Bill C-78 is a huge new ship, with some very nice looking aesthetic additions — but, with too few lifeboats.
And the iceberg is still coming.
Robert Harvie is a family lawyer, mediator and arbitrator with Huckvale LLP, advisory board member for the National Self-Represented Litigants Project and past Law Society of Alberta bencher.
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I am encouraged that someone else sees the iceberg; as a child and family clinician, I am deeply hurt that too often that iceberg comes in the form of child and youth emotional disturbances and increased risk of suicide. I haven’t slept well in years.