Proposed changes to the Divorce Act: John Syrtash invited to comment at House of Commons hearing

1. Proposed changes to the Divorce Act: John Syrtash invited to comment at House of Commons hearing by Orly Katz T 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. John Syrtash 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. he federal government plans to change Canada’s divorce laws. Associate Garfin Zeidenberg LLP Family Lawyer & Mediator for 37 years 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 care- givers, ” 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 ex- plained 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 ex- ercise 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. 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 in- tentioned 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 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 reduc- ing the high financial cost of divorce. His most significant advice was to make the legislation reliable, predictable and fair. 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 at- tacked, 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 “geno- cide.” 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 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.