Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 8 49 bolic move away from some of the more "archaic" concepts in the current Divorce Act. He will be particularly pleased to see the back of custody and access terminology, which he derides for evoking "proprietary" feelings in parents. "If we want to change the practice and culture of family law to focus on less adversarial disputes, then it's important to recognize the harm of conflict on children and to place the focus on their needs, rather than the rights of parents," he says. "Words matter." Calgary-based family lawyer John- Paul Boyd, who is also the executive direc- tor of the Canadian Research Institute for Law and the Family, says more practical measures in C-78 will boost its impact. "These changes are really significant. It's going to be of the same order of mag- nitude as the introduction of the 1986 Act," he predicts. For example, while the current act instructs judges to take into consider- ation "only the best interests of the child" when making orders for custody, the amendments flesh out the definition by providing a non-exhaustive list of factors for judges to consider when deciding. In addition, C-78 would require parents to give notice of their intended relocation with a child and establish guidelines for the parties that clarify who bears the burden of proof in different situations. Until now, the only guidance lawyers had in these cases was the landmark 1996 Supreme Court of Canada case of Gordon v. Goertz. But Boyd says the decision has steadily lost value as a precedent, with parties using it as authority to support and oppose mobility applications in sim- ilar fact situations. "It's been bent into a pretzel," he says. "I'm glad the government have finally picked up the ball and given us a list of factors to consider, because lawyers will now be able to give their clients a more realistic range of reasonable results. "When you have no way of saying what the likely result is going to be, it makes negotiation very difficult and funnels people toward trial courts. Judges are prob- ably sick of hearing these cases," Boyd adds. But not everyone is so impressed by C-78. Toronto family lawyer Brian Ludmer, a long-time advocate for the establishment of a presumption of equal shared parent- ing and a spokesman for the Canadian Association for Equality, says the bill was a "missed opportunity." Kentucky recently passed a law impos- ing a rebuttable presumption of shared parenting, using wording like a 2014 bill that failed at second reading in Canada's House of Commons. But Ludmer insists a revival would reduce litigation and improve outcomes for children. "We need a new paradigm, and this is one that fits the science," he says. Still, Bala remains skeptical and says jurisdictions that try some form of pre- sumed equal shared parenting usually end up backing off. "Having both parents involved is usually appropriate, and the bill moves us in that direction, but that doesn't mean it should be equal," he says. "Having a presumption also suggests that the focus is on the rights of the parent, as opposed to the needs of the children." L E G A L R E P O RT \ FA M I LY L AW CORPORATE COUNSEL Connect with Find more than 4,100 corporate counsel and over 1,500 organizations along with fresh editorial content, information on deals and links to important resources. Lexpert.ca/ccca ntitled-8 1 2018-07-13 11:02 AM The complete suite of tools for family law professionals is now securely in the cloud Learn more at divorcemate.com or call 1.800.653.0925 Untitled-1 1 2018-07-13 11:07 AM

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