Family law: New act puts children first during divorces

When Victoria lawyer Mary Mouat was called to the bar in 1988, she thought the best place for divorcing couples was in a courtroom, duking it out before a judge.

“I truly believed that was the best thing for families, and I was not alone — that’s how we practised,” Mouat said this week.

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At the time, she rejected the notion of mandatory mediation because she felt women and children would lose out.

But after seven years as a lawyer, Mouat realized the system wasn’t making her or her clients happy.

“I just felt I was part of a destructive process,” Mouat said. She completed training as a family law mediator in 1996, an event she called “transformative.”

The new Family Law Act, which came into effect March 18, rejects the courtroom as a main venue and relies on tools such as mediation to make the interests of children a top priority in decisions on guardianship and division of property.

The legislation reads: “An agreement or order is not in the best interest of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well being.”

Courts still have a role to play in determining guardianship and division of assets in some cases, Mouat said, “but for most separating families, that’s the last thing they need.”

Those families need “the support of a mediator, a counsellor, a child specialist. They need a variety of what we used to call alternatives,” Mouat said.

Now the courtroom is the alternative, she said. Judges also have more clout, deciding who gets counselling and who pays for it.

Judges can appoint a parenting co-ordinator — newly introduced to the system — to make various decisions with guardians about the children.

The new laws can make “healthy divorces” possible, Mouat said.

“We have the skills and the knowledge and support system in place to make people happier, instead of miserable and broke,” she said.

One of those applauding the promotion of children’s interests is Suzanne Williams, a child rights lawyer who has been the legal director of the international Institute for Child Rights and Development at the University of Victoria.

In family law disputes, most parents want control of the children, but their focus is on their own concerns and emotional states, Williams said.

“Sometimes, they don’t think so much about the children,” she said.

The previous legislation said that children’s views were to be considered if it was deemed appropriate.

“The presumption now is that children’s views will be heard unless it’s inappropriate,” Williams said, calling it “a subtle but important shift.”

It’s not about children making the decision, but the child’s voice being heard, she said.

“They are given an opportunity to give input to the decision, but not to make the decision, because that squarely falls on the shoulders of the adult,” Williams said.

Those decision-makers include parents, judges and parenting co-ordinators.

Research shows that this kind of legislation can improve life not only for children but for entire families, Williams said.

In October 2012, the United Nations Committee on the Rights of the Child reviewed Canada’s performance on respecting children’s views and expressed concern over “inadequate mechanisms” for meaningful child participation in processes that affect children.

There have been steps taken recently to address that gap.

The Hear the Child program, which was developed in 2012, uses neutral professionals to listen to children and provide reports of their views to decision-makers. The interviewer does not assess the child or the parents, but reports the child’s views, usually verbatim.

smcculloch@timescolonist.com

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