07/31/2012 03:53 EDT | Updated 09/30/2012 05:12 EDT

Canada Should Follow Britain's Lead When it Comes to Divorce Law


Our common law system of justice comes from the British model. As a former colony we adopted many of the ways and means of their system of courts, governance and law. Recently, Great Britain has taken enormous strides in law reform and in rationalizing the legal system to address current trends in family law matters. They are now considering legislation that would lead to the presumption of shared parenting upon relationship breakdown. Perhaps it is time for Canada to follow again.

Without dragging up the details of past efforts in this area in Canada, suffice it to say that legislative initiatives on both the federal and provincial level in this regard have met with stern opposition from many and varied groups. Even the Canadian Bar Association Family Law Section (of which I was a dissenting member on this issue) opposes such legislation.

In introducing the details of the proposed legislation in Britain, Children's Minister Tim Loughton stated:

"We need to clarify and restore public confidence that the courts fully recognise the joint nature of parenting. We want the law to be far more explicit about the importance of children having an ongoing relationship with both parents after separation, where that is safe and in the child's best interests. Where parents are able and willing to play a positive role in their child's care they should have the chance to do so. This is categorically not about giving parents equal right to time with their children - it is about reinforcing society's expectation that mothers and fathers should be jointly responsible for their children's upbringing."

This statement by the British Minister addresses the concerns of many of the competing groups here in Canada. This type of legislation recognizes the importance of both parents to a child's development while ensuring that any such court order must be fully cognizant of the issues of safety and the child's best interests. Concerns for either would trump any presumption of sharing. Further, it addresses and affirms that shared parenting does not translate automatically to an equal right to time with the child. We in Canada and those of us who "toil in the fields of matrimonial discord" should pay close attention to the British experience in this regard.

Further of note is the intent of the British legislation to introduce meaningful access enforcement. As the British Justice Minister said:

"We want to send a strong message to any parent who ignores the arrangements ordered by a court. In the future these breaches will be brought back to court within weeks and before the same judge wherever possible. If any parent flouts a court order then effective enforcement measures will be available to the judge."

In Canada, original support enforcement legislation introduced the concept of support and custody enforcement. However this was later abandoned in successor legislation and we are, today, left with very effective support enforcement and little or no enforcement mechanisms for the enforcement of court orders relating to access.

Legislation similar to that introduced (for consultation) in Britain is urgently needed to comfort those whose relationships with his/her children are defined by court order. Those relationships must be protected such that a parent who is not the primary residential parent can grow his/her bond with children in marital breakup situations free from concern that an opposing party will flout the very order that defines the extent of time spent with the child(ren).

These controversial issues stimulate emotional debate among the general public and participants in the Canadian justice system. I suggest that it might be time, again, to let Britain inform our way on these legal matters.