On March 1, 2021, changes to the Divorce Act are coming into force. They are regarded by most of the family law legal community as a tremendous sign of progress. But if we want to see real change in our court system and for families, what we need is a better mental health services infrastructure.
For individuals and parents navigating the family law system, the upcoming changes to the Divorce Act are significant. The old terminology of custody and access is being jettisoned, in favour of “parenting time” and “decision-making responsibility.” There is a consensus amongst family law lawyers that the old custody/access terminology aggravates disputes, making litigation more protracted and painful than necessary. Parents who are losing “custody” feel like they are losing their children. Having “access” feels to parents like they are spending time with children who do not really belong to them.
The changes go further than addressing the terminology. They establish that parenting time includes the right to make day-to-day decisions, thereby creating a more equal playing field between parents with responsibility on major decisions and parents who only have parenting time. The Act also strives to nullify disputes on minor extra-curricular activities, thereby giving parents who do not have decision-making responsibility more freedom to organize activities on their time.
The Divorce Act changes also target mobility. There are now mandatory notice provisions for parents who wish to move residences in a way that would have a significant impact on their children. There is a period during which parents who receive notice must either file an objection on a prescribed form or bring a court application. These changes are meant to clarify what had previously been a difficult test to establish or defeat rights of relocation.
The changes also include the creation of “contact orders” meant to structure and facilitate relationships between children and non-parents (e.g. grandparents).
The changes are welcome, and they are helpful, but they will not be sufficient to quell complex or high-conflict disputes – the cases that create backlogs in our court system. The strains on the family law system – lengthy wait times, cases that reappear, over and over, for litigation, and involve restraining orders, domestic violence and allegations of mental abuse – these are not products of the language of the legislation. These are reflections of a real deficit in our society of mental health services.
Many individuals in high-conflict litigation are suffering from anxiety, depression and complex trauma, and they are not receiving the help they need to manage their emotions through a difficult process. If we want to see a real change in our family court system, we will need to see a strengthening of social supports in the realm of mental health.
There are amazing therapies available for people who suffer from trauma, anxiety, depression and a host of other disorders. There is EMDR, cognitive behavioural therapy, traditional talk therapy, etc. Many people in high-conflict litigation would benefit from these services. (This is true of the population at large.) But these services are often expensive or difficult to access. Where clients are eligible for publicly funded programs, the wait times are often lengthy, and the services are offered at a limited scope.
An additional challenge is that many lawyers and clients do not know about the existence of effective mental health supports. In worst-case scenarios, clients with mental health problems are misunderstood by their lawyers and branded as difficult.
There needs to be better training for lawyers about providing services to clients who are navigating mental health challenges. Many mental health experts believe that there needs to be a curriculum of mental health education in schools, in addition to a greater program of publicly funded psychological supports.
Family law disputes are not difficult to resolve. Arranging schedules is not difficult. For trained professionals, assessing financial obligations is not difficult. What is difficult is the emotional aspect. To alleviate that problem, the family court system needs to be supported by a robust mental health infrastructure. Only then will we see lasting change.
Ottawa lawyer Alexandra Kirschbaum has practised exclusively in family law since 2013.