Ontario is making some adjustments to its family legal system, with the goal of bringing the provincial legislation in line with Ottawa's, and simplifying the process overall.

The changes are consistent with Attorney General Doug Downey's vision of "modernizing" Ontario's legal system through improving online services and other streamlining measures — which also often save the province money. The approach has landed him in hot water from groups like legal aid clinics who say the government is cutting corners on the backs of marginalized people — but two family lawyers told QP Briefing these changes improve access to justice for those navigating the family court system.

Perhaps the most important change under the Moving Ontario Family Law Forward Act will be bringing Ontario's system more in line with changes to the federal Divorce Act, which were supposed to come into force July 1, but have been delayed until March of 2021 due to COVID-19.

Frances Wood, the chair of the Ontario Bar Association's family law section, said the OBA was concerned that the delay would result in confusion between provincial and federal legislation where they cover the same issues.

For example, the current provincial legislation uses words like "custody" and "access." After much consultation, the feds will move away from those "buzzwords," Wood said, in favour of terms like "parenting decision making" and "parenting time."

"You can imagine that if there are two different sets of legislation whereby some people are still getting custody and access orders, and other people are getting parenting orders, that can create a whole level of confusion for the litigants, but also for other people that are involved with those families," like schools and doctors, she said.

Sam Misheal, the chair of the family law committee of the Federation of Ontario Law Associations, said it's high time the province moved toward a more "child-focused" approach, where decisions are made based on what would be best for the child, instead of conducting the "Olympics in parenting," where litigants try to prove how great they are.

The changes will hopefully make the process less litigious and more "resolution-oriented," he said.

The new legislation will also re-enact a section that mandates that parenting or contact orders with a child "shall only take into account the best interests of the child," including the child's emotional ties, views and preferences, which Misheal said is a good change.

Ontario is also looking to expand the Dispute Resolution Officer program, where potential litigants meet with senior members of the family court before filing a lawsuit. Wood, a DRO herself, said the program has resulted in more mediation, saving valuable court time — and money, for individuals and the province. Even when DROs are not able to avoid litigation, they can help organize a case to help it run smoothly, Wood said.

"A lot of time we'll get self-represented litigants who really just don't understand either what their rights or their obligations are, and sitting down with a senior member of the family law bar who says, 'Look, this is how this works,' can very often cut through the weeds ... and get people to a place where they can agree on things," she said. "So in my experience doing them, there's a really high success rate in resolving matters."

Misheal said the government should go further to divert people away from the courts and toward mediation by giving judges the power to mandate mediation in some cases where it would be appropriate.

More mediation would improve access to justice by further reducing court cases, Misheal said. Even if some parts of a case can be mediated — say, property and spousal support — and others need to go to court, the case will be shorter overall, he noted.

Others have also called for a less "adversarial" system. In Canadian Lawyer magazine, family lawyer Geoff Carpenter argued earlier this month for changes to the CBA's Model Code of Professional Conduct to encourage counsel not to raise every grievance from relationships in family court. He was unavailable to comment on whether the Ford government's proposed changes will help in that regard.

The provincial bill also clarifies the appeal process, and allows caregivers to get certified copies of child support notices online, instead of having to go to a courthouse — Misheal welcomed those changes as well.

The government said the proposed changes follow "extensive consultations" with parents, child protection advocates, family lawyers, arbitrators and mediators.

Wood said the OBA, through the Canadian Bar Association, provided a lot of consultations on the federal changes, and encouraged the province to basically adopt all of the same changes. Now, the provincial legislation will mirror the federal one in nearly every way, she said.

"Comprehensive action to advance family law is a critical part of any conversation around moving our justice system forward for Ontarians," Downey said in a release. "We're proposing common-sense changes to simplify Ontario's family law system, allowing parents and guardians to spend less time on paperwork and court appearances and more time making plans to support and care for their children."

Lawyers welcome proposed family law changes

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