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May 12, 2021

Changing times for family law

By Marcelin F. Murray

Recent changes to provincial and federal legislation have fundamentally altered the landscape of family law in Manitoba.  Newly separated families can expect to navigate a system that has been transformed by an overhaul of “custody” terminology, the reorganization and expansion of government services intended to assist families in transition, and the introduction of arbitration in family law matters.       

The Divorce Act

Federally, the Divorce Act (which applies only to married parties) has undergone sweeping changes which came into effect on March 1, 2021.          

Elimination of “custody” language and the “maximum contact” principle

Instead of the familiar terminology of “custody,” new parenting orders pronounced pursuant to the Divorce Act will refer to “parenting time” and “decision making.” They will provide for “contact orders” in the case of a non-parent. The designations of “sole custody” and “joint custody” no longer exist under federal legislation. 

Orders for sole custody and joint custody can still be pronounced pursuant to The Family Maintenance Act of Manitoba, which applies to unmarried parties and married parties who are separated but not divorcing. This is an inconsistency between the two Acts which, it is to be hoped, will be remedied sooner than later.

In addition, the principle of “maximum contact” [with each parent] will no longer be a consideration for parenting orders. The express direction in the newly amended Divorce Act is that only the best interests of the child are to be considered in a determination of parenting time. The “best interests” test is expanded and defined by a list of criteria to be considered. 

Relocation

The new Divorce Act introduces rules and criteria for a parent’s proposed relocation with children who are subject to a parenting order. The rules include a requirement that the moving parent notifies the other parent no less than 60 days before the proposed move. If opposed, the responding parent must provide an objection within 30 days of the notice. The amendments also set out the factors to be considered by the Court on a relocation application, which provides some clarity in an area of the law (relocation) that has previously been murky at best. 

Family violence

The Divorce Act amendments include a significantly expanded definition of family violence. The new definition includes physical or psychological harm and harm to pets or property, and expressly does not include a requirement that the family violence meets the level of criminality. It also acknowledges that family violence impacts children even in cases where the child was not the target of the abuse.

The introduction of a requirement that lawyers screen clients for family violence, and expanded requirements that counsel advise clients of alternative dispute resolution processes which are available to them are also new amendments. 

The Family Law Modernization Act

Provincially, The Family Law Modernization Act received royal assent on June 3, 2019, with various parts coming into effect on different dates thereafter.  The Act provides a legislative framework for arbitration of family law disputes in Manitoba.  This is a change that has been advocated by family law counsel in Manitoba for several years.  The Act has also expanded the powers of the Child Support Service and the Maintenance Enforcement Program, which are now arms of the newly created Family Resolution Services.

Specifically, The Family Law Modernization Act  (FLMA) is overarching legislation that creates new Acts, or amendments to existing Acts. 

The Family Dispute Resolution (Pilot Project) Act 

The FLMA enacts The Family Dispute Resolution (Pilot Project) Act, which will require certain family law issues between separating parties who are unmarried, or married but not seeking divorce, to be referred to a mandatory mediation/arbitration service to be created by the provincial government.

The Child Support Service Act

The powers of the former Child Support Recalculation Service (now the Child Support Service) are expanded by the FLMA to permit calculation of originating orders of child support.  Only recalculations of existing child support orders were previously authorized.  The new Act also empowers the Child Support Service to cease recalculating child support for adult children who are no longer entitled to child support (previously a court order was required), and it details the right of the Child Support Service to access financial disclosure of the payor. 

The Family Maintenance Act (Maintenance Enforcement Program provisions) 

Amendments to The Family Maintenance Act expand the authority of the Maintenance Enforcement Program, the government agency responsible to enforce and collect support payments on behalf of recipients.  The Program can now cease enforcement of a child support order for an adult child no longer entitled to child support, or suspend or reduce child support in certain circumstances with appropriate evidence.  Previously a payor of child support was required to bring a court application to achieve this result if the recipient parent did not respond, or consent, to the request.   

The Arbitration Act

Perhaps most significantly, the new legislation amends The Arbitration Act to include family law arbitration. This major change provides separating parties in Manitoba the option to retain private arbitrators (lawyers with at least 10 years of experience in family law) to make decisions relating to the restructuring of their families. The amendments codify the obligations of counsel who arbitrate family law disputes and provide for limited rights of appeal from arbitral decisions. Decisions reached by an arbitrator must be consistent with the relevant family law legislation.

The arbitration amendments are a welcome change for many lawyers practising family law in Manitoba. The addition of arbitration to the family law “toolbox” allows parties, if they so choose, to avoid a court system that can be convoluted and costly. Instead, separating couples can refer their dispute to an experienced family law practitioner who will hear evidence and make a ruling privately, much like a judge would do in a court setting. 

The benefit of arbitration to the parties is a streamlined, less formal and private process for dispute resolution which can be tailored to the specific needs of the family in terms of process, evidence, issues to be resolved. The parties can decide whether or not the arbitrator will attempt mediation (settlement discussions) prior to arbitrating the issues. 

The website of the newly formed FAMLI (Family Arbitration Mediation Legal Institute) organization is a valuable resource for separating parties who are interested in private arbitration. It includes information about the arbitration process as well as a list of professionals, including lawyers, who are trained to participate in arbitrations. Further information can be obtained at famlimanitoba.ca.              

Marcelin Murray is a family lawyer and a partner with Fillmore Riley LLP. She sits on the Executive of the Manitoba Bar Association Family Law subsection and the Board of Directors of FAMLI. She can be reached at (204) 957 8334 or mmurray@fillmoreriley.com.

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