By Munera Lawyers
The Divorce Act is the legislation that applies to married couples who are divorcing in Canada. Significant changes have been made to the Divorce Act which will come into effect in the new year. This article provides an overview of the most important changes to the Divorce Act that family lawyers and litigants need to know.
Remember that if you did not marry your partner, the Divorce Act does not apply to you. Instead, your family law questions are governed by the relevant provincial legislation. In Ontario, that provincial legislation is the Family Law Act and the Children’s Law Reform Act.
Legislative Enactment
In March of 2018, the government introduced Bill C-78. This bill aims to strengthen Canada’s family justice system through changes to the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, and the Garnishment, Attachment and Pension Diversion Act. Important considerations also include addressing the significant costs of family litigation by reducing reliance on courts through an emphasis on alternative dispute resolution. Bill C-78 received royal assent on June 21, 2019, however the changes will come into force on March 21, 2021 in an effort for the courts to give lawyers and litigants (together with other partners in the family justice system) time to implement the legislative changes including by revising their own laws and regulations. This date has also been further delayed by the Covid-19 pandemic in order to allow the provinces to draft the appropriate accompanying legislation.
Key Changes
Terminology
The new Divorce Act adjusts critical language relating to parenting after separation. This language reflects that of British Columbia and Alberta’s existing legislation, and uses terminology like parenting time, decision-making responsibility, and contact. This new language replaces previous concepts like access and custody, and shifts the meaning to focus on the rights and responsibilities of being a guardian. The new Divorce Act also provides a non-exhaustive list of factors that provide guidance in considering the best interests of a child. The best interests of the child is the only consideration when making an order relating to a child.
Moving
Some of the most difficult cases in family law are mobility cases, where a person with rights and responsibilities towards a child moves to a new area that is different from another other person with rights and responsibilities to the child. These cases can be very hard to mediate as there is often little room for compromise. The new Divorce Act provides a framework for this difficult issue using the terminology of a relocation. The Act defines a relocation as a change in the residence of a child or a spouse that may have a significant impact on the child’s relationship with a spouse or a person with contact. What exactly constitutes a significant impact is undefined, and will be determined in upcoming case law. If a person with parenting time is planning a relocation, they must give at least 60 days’ notice to anyone who has parenting time, decision-making responsibility or contact. The notice must be in writing, state the date of the proposed relocation, the address of the proposed relocation, and provide a proposal as to how parenting time, decision-making responsibility or contact may be exercised if the move happens.
A person with parenting time or decision-making responsibilities may object to the proposed relocation by filing a court application within 30 days of getting the notice. In deciding whether to allow the move or not, the Court must consider many factors including the reasons for the relocation, the impact of the relocation on the children, the time that the children have with each person who has parenting time, whether the relocating person has complied with the notice requirement, and the reasonableness of the proposal.
Family Violence
The new Divorce Act requires that the court “give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being” in determining a child’s best interests. Factors to consider in such an analysis include:
Family Violence is defined to include physical abuse, sexual abuse, threats of harm to persons, pets and property, harassment, psychological abuse, and financial abuse. Where family violence is a factor, the Court must think about the following list of factors:
New Obligations for Family Litigants and Lawyers
The Divorce Act now imposes special duties for various actors in the family justice system. Spouses now have duties to protect their children from conflict arising from their court case, provide accurate and up-to-date information, and are required to attempt to resolve their disputes through mediation, collaborative negotiation, or arbitration before attending court.
Similarly, lawyers are required to inform their clients on alternatives to court. The Court is now required to consider civil protection orders, child protection proceedings, criminal proceedings, undertakings, and recognizances when making decisions related to parenting after separation. This new requirement will bridge gaps and ensure awareness of legal proceedings that are occurring alongside the family