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Proposed changes to the Divorce Act:
John Syrtash invited to comment at
House of Commons hearing
by Orly Katz
John Syrtash
Associate
Garfin Zeidenberg LLP
Family Lawyer & Mediator
for 37 years
The federal government
plans to change
Canada’s divorce laws.
On November 26, 2018 John
Syrtash of Garfin Zeidenberg
LLP was invited to present his
views on proposed changes
to Canada’s Divorce Act
(Bill C-78) to the House of
Commons. His unsolicited invitation was made by the Parliamentary
Standing Committee on Justice and Human Rights and he attended as
Family Law Counsel to B’nai Brith Canada. The invitation was based
on Mr. Syrtash’s experience as a Senior Toronto Family Law lawyer of
37 years as a litigator, mediator and author. Mr. Syrtash has written
innumerable family law articles in the Canadian Jewish News, the
Tribune, National Post and in his weekly summary of family law cases,
the Syrtash Family Law Netletter in Quicklaw/Lexis Nexis. He also
successfully developed and lobbied for important legislative reform.
Mr. Syrtash was happy to go as a voice of the people, not just as a
lawyer, a voice for human rights. He presented his written brief and
told the Committee that laws should be reliable, predictable and fair.
All of Mr. Syrtash’s suggestions were made to save divorcing spouses
time and money. They were also designed to enhance predictability
and protect children from legal disputes.
Bill C-78 proposes to change Canada’s Divorce Act. Among these, it
would eliminate words like “custody” and “access” and replace them
with “parenting and contact Orders.” The government’s intention is
that changing the language will help diffuse the number and intensity
of Court battles over children since they would not be fighting over
these words. Mr. Syrtash delivered both a speech and a detailed 10
page brief to Parliament. Although this change of language is well intentioned
Mr. Syrtash said that no parent will care about this change
of language and will continue to fight for primary care and control of
their children or access, no matter what it’s called. Mr. Syrtash quoted
Shakespeare’s Romeo and Juliet: “a rose by any other name would
smell as sweet.” Mr. Syrtash told the Committee that words matter.
As he explained, doing away with the words “custody and access”
could eliminate decades of jurisprudence. Parents in the Courts would
then have to pay needless funds on legal fees for reinterpretations of
the law.
The Bill defines “family violence” to include “financial abuse” and
“controlling behaviour.” While Mr. Syrtash acknowledged that such
a change in definition is well intended, a parent who wants more
money from their spouse could now attempt to deny the other parent
access to the child for the wrong reasons. While sometimes there may
very well be financial abuse and/or controlling behaviour it is not the
same as violence. Broadening the definition would cheapen the word
“violence” and trivialize the suffering of those who are physically attacked,
including children. As with the definition of “family violence”
in Bill C-78 the initial proposed changes to the Criminal Code in Bill
C-75 significantly reduced the meaning of such words, such as “genocide.”
Until B’nai Brith made its recommendations to Parliament, that
change in language could have meant that a criminal prosecuted for
genocide could have asked for a jail term as short as six months to
two years. Mr. Syrtash also expressed his concern that the proposals
that include “financial abuse” as one type “family violence” could
lead to unintended consequences. There are many situations where a
household member is at risk of losing his income: this could then be
interpreted as “financial abuse.” Once example may occur where a
grandparent, who is member of the household, faces retirement. An
abuse of this legislation could lead to preventing any further contact
with his or her grandchild if he or she faces the risk of a drop in
income when he retires.
Among various other ideas, Mr. Syrtash also applauded the proposed
legislation to the Divorce Act that would now allow caregivers other
than parents to apply for “parenting rights.” However, he noted
that grandparents be expressly included with the word “other caregivers,
” just like a similar law Ontario recently passed for children of
unmarried parents and former spouses. Mr. Syrtash also made his own
suggestions for changes. He was troubled by a part of the Divorce Act
that allows a parent to ask a Court for a reduction in child support
payments if he has more than 40% of a child’s time. Mr. Syrtash explained
that many times such a parent has little or no interest in the
child but will ask the Court for more time that he never intends to exercise
just to save money. He also explained that the Courts are vague
about calculating the 40% means: it’s unclear whether it includes the
child’s sleeping and/or school time. It’s not clearly defined. Instead Mr.
Syrtash proposed that only people with similar incomes who actually
exercise the right to a child’s time equally be excused from paying
child support. He also objected to another proposal which appears
to make mediation mandatory as a first step in the Divorce process.
Mediation should be an optional, not mandatory, as each case is
different. In some high conflict or abusive divorces a spouse may feel
intimidated by their wife or husband. If mandatory, mediation may
present yet another financial hurdle that may not work for all families
and should remain an option. He further suggested to adopt one
idea he got from a Judge. To deal with parents who don’t show up
for access visits or fail to come at all, Mr. Syrtash proposed a law that
allows Judges to increase child support by 25% retroactively by one
year if, after that time a parent has failed to visit his child at times
scheduled for such visits. Finally, Mr. Syrtash suggested a “rebuttable
presumption” that a child’s time and decisions for him/her be shared
“equally” by both parents. What this means is that in most cases a
Court would presume that the parents are fit to care for a child but
the Court can also decide differently, especially if a parent is unfit.
The government has recognized that the Divorce Act needs to be
amended. It is transparent that Bill C-78 has taken a lot of time and
effort. Mr. Syrtash applauds the Committee for soliciting the advice
of family law lawyers, such as himself, who deal with families going
through divorce every day. Mr. Syrtash thanked the Chair Anthony
Housefather for the invitation and spoke with compassion for reducing
the high financial cost of divorce. His most significant advice was
to make the legislation reliable, predictable and fair.
Family Law
Counsel John
Syrtash (L)
talks with Chair
MP Anthony
Housefather
while testifying
at the House of
Commons.
Mr. Syrtash is Senior Family Law Associate to Garfin Zeidenberg LLP, celebrating 37 years as a Family Law lawyer this year.
Suite 800, 5255 Yonge St. (at Norton) just north of Mel Lastman Sq, Civic Centre Subway station, Toronto, ON M5G 1E6.
John Syrtash can be reached at (416) 642-5410, Cell (416) 886-0359.
Visit www.freemychild.com; www.spousalsupport.com; www.garfinzeidenberg.com.
Neither Garfin Zeidenberg LLP nor John Syrtash is liable for any consequences arising from anyone’s
reliance on this material, which is presented as general information and not as a legal opinion.
Sponsored by the Community for Jewish Culture of B’Nai Brith Canada.