Toronto family lawyer Elinor Shinehoft would like to see Ontario follow Nova Scotia’s lead and replace language such as “access” and “visiting privileges” in its family law legislation with more modern phrasing.
“When I hear terms such as ‘custody’ and ‘access’ I think more about aggression and posturing, and who’s going to win and lose,” says Shinehoft, principal of Toronto family and personal injury law firm, Shinehoft Law. “I like ‘parenting’ and ‘parenting plan’ because they express a continued involvement by both parents and something that’s ongoing.
“Both parents will continue to care for their children and it’s just a matter of figuring out the scheduling and how much involvement each will have.”
Nova Scotia’s new Parenting and Support Act, which was implemented in May, includes modernized family laws and updated court rules aimed at placing children’s needs at the forefront following a marital split.
The amendments see “parenting time,” “contact time” and ”interaction” replacing phrases like “access” and “visiting privileges.”
Shinehoft tells AdvocateDaily.com those changes can be beneficial to families who are often dealing with a very emotional situation when they separate and divorce.
“Lawyers are starting to adopt terminology such as ‘parenting plan’ and ‘parenting time’ because ‘access’ and ‘custody’ have a really negative connotation,” she says.
And, if lawyers make the switch in language, clients are likely to use them as well, Shinehoft adds.
“I think the client will tend to go along with it easier because they’re coming to you for help and advice. So if you’re drafting a separation agreement using the terms ‘parenting plan’, ‘residence of children’, ‘primary and secondary residence’ and ‘planning schedule’, as opposed to custody and access, I don’t think many people will have a problem with it,” she says.
“I don’t think most lay people are actually aware of the terminology used in the legislation and I find words like custody and access tend to come out more in court.”
In her practice, Shinehoft tries to encourage families to settle or use the collaborative process to avoid the more costly and adversarial court system.
She finds starting to resolve matters involving the children usually determines the direction for agreement on other issues. So the terms used early on could set the tone for the entire process, she says.
The portion of time each parent has with the children will suggest how to approach issues involving the family’s finances, property and the matrimonial home, Shinehoft says. The percentage of time one parent has with the kids and where they will live will affect who’s paying child support and if there’s spousal support.
The parenting plan may also affect property division if one is to buy the matrimonial home.
“You want to start with the children’s issues because if you can’t agree on that, you’re not really going to be able to resolve the rest,” Shinehoft says.
“We’ll look at tackling the parenting plan and try to sort out as much of that first because it will help pave the way towards the rest of the issues still to be resolved.”