4.11.3 Reforming the Divorce Act

Many Canadian couples experience a marriage or partnership breakdown. For those who enter the world of court-resolved divorce and child care disputes, years of unhappiness can follow.

Increasingly, the non-custodial parent lacks meaningful access to his or her children. Grandparents can also be cut off.
There are no winners in these cases and children are the primary losers.
Upwards of 50% of marriages end in divorce, and an even higher rate of partner relationships suffer breakdowns. While the original intent of ‘no fault’ divorce introduced in 1985 was well-intentioned to make divorce easier and equally available to both genders, a quarter of a century later, virtually every Canadian is now aware of the many shortcomings and the unintended consequences of unilateral divorce through the direct experience of family or close friends.

The family court system has become dysfunctional and arbitrary: Children are at risk of being isolated from one parent as well as grandparents; bankruptcies occur for one parent in 50% of divorces; Child Support can become a thinly disguised form of Spousal Support; false allegations and perjury are not uncommon; court orders for access are routinely ignored or flouted by moving to another jurisdiction; legal costs often consume accumulated assets of separating family units; ‘deadbeat parents’ – some of whom deserve the title but some of whom are sick, unemployed, or below the poverty line – are subjected to counterproductive loss of licences and loss of passport as well as ‘debtor’s prison’; and legal aid is often not available for many family issues – arguably the most fundamental liberty interest of all. Resolution of this issue is made additionally and unfairly complicated by having responsibility split among provincial and federal jurisdictions for various aspects of divorce.

The very social fabric of Canada and its future is being systematically eroded by a broken and unnecessarily intrusive system that has multigenerational consequences.

The Green Party envisions a society where family breakdowns avoid the suffering of children, grandparents, and former spouses and which does not clog the courts. We will work to re-balance the current family law system, making it less adversarial, and place the on-going maintenance of healthy relationships, wherever possible, at the heart of the system.

The Green Party affirms the UN Convention on the Rights of the Child.

As in any disruptive life event, the state has an obligation to assist parties through the transition period of marriage dissolution.
The regrettable dissolution of family units should be handled in an economic and expeditious manner with maximum responsibility placed on separating parties with minimum reliance on adversarial legal processes. The role of the state is to facilitate the process.

Greens believe that two principles can operate together. The paramount principle is ‘the best interests of the child.’ Under no circumstances should parental interests trump the best interests of the child. To this, we assume that in most circumstances, a second principle, ‘equal parenting’ can be honoured. The best interests of the child are served through maximal ongoing parental involvement with the child, and that the presumption of equal parenting via joint responsibility and decision making is the starting point for judicial deliberations. Aside from joint responsibility and ongoing obligations to the child, separating partners should be free to arrange their own relationships under private law and, following dissolution, should be unencumbered in pursuing their own paths unless otherwise agreed beforehand.

To avoid children being treated like the spoils of war, the Greens believe the Divorce Act must be overhauled. The British Columbia family law provisions are a sound model. We will launch a consultation with Canadians, with the legal community, family therapists, and other experts to seek ways to reduce, and preferably eliminate, the adversarial nature of family law.