For some time I knew a big change was coming in Family law in Canada. Now it is here. The new Divorce Act and Family Law Act. There have been grace periods where we could use our old precedents, but even that has now run its course and we all have no choice but to face and accept the change.
As a sit down to draft my new precedent with new terms of parenting plan, parenting time and decision making, and delete the terms of custody and access, I find that I am getting more and more excited with this change. With every new sentence that I write in my draft Separation Agreement I realize that these wise legislators knew exactly what there were doing with these changes.
First of all, we are familiar with the terms “custody and access”. They have become so familiar in our vocabulary that I think we forget to stop and think about what we are saying. They are “winning” and “losing” terms. If we want newly separated couples to truly think about the best interests of their children, we need to get rid of language that implies at all that it is a competition and that there will be a winning parent and a losing parent. As my colleague eloquently put it: you have “custody” or “care and control” of a car. Not of a child.
Which brings me to my second point. While my children are “mine” in so many ways, they are simply not property. They have rights in and of themselves simply by being human beings. The language of custody and access will soon, I think, sound archaic, from the days when children were seen as property.
The most exciting part for me in drafting this separation agreement, is that I see greater potential for the role of a mediator. I can imagine sitting down with both parents and discussing, with the best interests of the children in mind, a parenting plan. Mediation is about interests, not rights. If we are able to take out the winning/losing language and remove the “rights” of the parents’ mentality, we can focus on the interests of the children and, together, make decisions in real time, that can then be drafted into a document that the parents can understand, be proud of, and guide them as they co-parent through very few precious years.