In 2019, Parliament passed amendments to the Divorce Act. These were supposed to come into effect last July, but because of the pandemic, this has been postponed to March 1, 2021.
As these changes quickly approach, Droit-inc asked the lawyer and mediator Mandy alessandrini, who has worked in law for over 20 years, to enlighten us on the new Canadian Divorce Act.
The one who currently works at Devichy Avocats is delighted by the new law, which really puts the best interests of the child at the forefront.
Droit-inc: This reform changes many aspects of the Divorce Act… What are the most important?
Mandy Alessandrini: It’s huge! But it is also fundamental. It’s a nice change! Me, that really inspires me. And it also risks influencing our civil law, for us, for the children of unmarried parents …
First, there is a new terminology that is more child-centered. We are talking about “parental orders”, which will replace the concept of custody. We also speak of a “contact order” for people other than parents. We talk about “decision-making responsibilities” – and we say that this could correspond to parental authority, in Quebec law.
We also talk about “parenting time”, so it is the dependent child who is with the person, the parent, even when that child is at school or at daycare … We also talk a lot about family violence. , so we are now obliged to take into account the family violence that the child experiences or that he may witness, directly or indirectly.
We aim to protect children against conflict … It is truly a great dedication to the child and to the interests of children. The best interests of the child are the subject of a very long and non-exhaustive list, so that will even inspire the notion of the best interests of the child in Quebec law, I believe. We are also talking about a contact order for third parties, other than parents …
Then we talk about the “parental plan”: we no longer use custody terms and custody arrangements – this is a huge change. This is where we see the fundamental difference made by this law: the parental plan embodies a relational dimension of the application of a law. The relational dimension is always in connection with the child. A parenting plan is a form of parental responsibilities or care in the broad sense, which is built around a child. While “custody” terms a child, it is a child who is someone’s object.
It forces you to take into account the whole context of the child. It introduces a relational dimension of law, it’s a fluid dimension, which is very factual, you have to take a lot of facts into account … It’s not that simple, it requires greater analysis, greater rigor , but it takes into account the best interests of the child, it takes into account this little human being … in everything he is.
And this is very important, according to you …
Yes! It is a human being, it is not a thing … In fact, it is the recognition of the other. It is touching to see legislation written like this.
The importance of this child is fully enshrined in the new Divorce Act. It forces parents to consider the child a lot. It also forces them to think about it, obliquely. Because if we take a remedy, these are the factors that will determine the “rights” of the parents … But basically, it is not a “right” that we have over a child – the Divorce Act is not articulated like that.
When we have a relational dimension, when we take the other person into account, we must necessarily take into account the context in which they live; So if there is violence … Before, it was not written. There, the whole context of the child’s life is taken into account.
There is another very striking example: we specified the important move, and defined what it was, we also described the factors not to be considered by the court. And that too will have an effect in our civil law, for children from unmarried parents.
What does that change, actually?
There was no comparable section in the Divorce Act before … It was only case law. The legislator came to regulate this.
This reform was eagerly awaited for several years …
Yes! Reform was requested for 20 years!
And all these changes in vocabulary, in perception … What will this change concretely for you, in your practice?
It will make me very happy (laughs)!
Me, I am a mediator, too … And you know, these are not new concepts: it comes from training in mediation: mediation obliges to take into account the child, the other, the parent … this is not to go to court and say: here are my rights, do something for me. Mediation is work, but in this work, we have a relational dimension of the law that is articulated. It is not surprising that these are the same terms used …
So that will force, if we want to bring a dispute, to take into account the interests of the child, and to follow the prescriptions of the law, all the criteria … So to write the procedures according to these criteria, and in practice, this also obliges – we have it in civil law – to consider mediation before initiating a dispute. And that’s for everything, it’s not fair in family law… There is therefore an important dedication to mediation.
We discourage litigation between parents … but if there is a dispute, you will take the child into account!
It’s enormous. What that changes in practice is that you have to take all these things into account. And these are very fluid things, so you have to be on the lookout. It is work, on the other hand!
Yes, you add work to you!
Yes, but it is work! It is living law, it is consistent and integral law, because it takes its context into account. I am very happy with this great reform!