Legislating a Family Law Culture Shift

On March 1, 2021, the long-awaited amendments to the Divorce Act, RSC 1985 c3 (2nd Supp) came into effect, changing the word “custody” to the more accurate “decision-making”, expanding on the best interests of the child test, creating presumptions for relocation, and for the first time, recognizing family violence. In addition to these crucial substantive changes, there has been a bubbling excitement among the family law bar about the amendments’ emphasis on resolving family law matters through non-adversarial processes. (E.g.: here and here.) Except where there is family violence, and only where “appropriate”, counsel are required to “encourage” the client “to attempt to resolve the matters” through a “family dispute resolution process”, which includes collaborative practice (“CP”) for the first time (s.7.7(2)(a)). All lawyers are already required to recommend settlement to their clients (R.3.2-4), and court rules often require that parties try to settle before they proceed to trial; but the range of dispute resolution processes recognized has been expanded and the client has an obligation to “try” (s.7.3). In other words, the bar seems to have been set higher in terms of prioritizing the merits of a consensual resolution. The Supreme Court of Canada called for a “culture shift” in civil litigation in Hryniak v Mauldin, 2014 SCC 7, and the culture of family law has been shifting over the last fifty years. The sense is that these amendments are trying to encourage further change, recognizing the need for a culture of reasonableness in family law, and space for non-adversarial advocacy, but not at the expense of rights-based approaches and adversarialism where necessary.