Changes to the Divorce Act - Bill C-78
Substantial changes to the Divorce Act were made in July of 2020, and come into force on March 1, 2021. The Divorce Act applies to married couples, creates a national system for divorce, and provides for orders for spousal and child support as well as parenting in divorce cases. For unmarried couples in Alberta, the Family Law Act applies.
The changes to the Divorce Act have four key objectives:
1. Promoting the best interests of the children.
2. Addressing Family Violence
3. Helping to reduce poverty; and
4. Making Canada’s family justice system more accessible and efficient.
Promoting the Best Interests of the Children
Best Interests Criteria: The best interests of the children are the only consideration for parenting decisions under the Divorce Act.
The Divorce Act sets out a non-exhaustive list of best interest of the child criteria, identifying key factors related to children’s well-being. As the list of best interests is non-exhaustive, parents should consider factors that are relevant to the circumstances of a particular child, even if such factors are not listed. No single factor is determinative, and will be weighed in the context of each child’s particular circumstances. In addition, the changes to the Divorce Act identify a “primary consideration” which specifies that a child’s safety, security and well-being are the most important factors to consider.
Change in terminology: The Divorce Act replaces the terms “custody” and “access” with terminology focused on parent’s responsibilities for their children. These terms will be replaced with “decision-making responsibility” and “parenting time” respectively. “Contact” applies to someone other than a spouse who spends time with the children (such as a grandparent).
“Decision-making responsibility” refers to the responsibility to make significant decisions about a child, such as decisions about a child’s health and education. Both spouses, a parent, and any person currently in or seeking to be in a parental role in the life of a child can apply for a “parenting order”.
Every day decisions (known as “day-to-day decisions”) are made by the person who has been allocated parenting time for that period. A person with parenting time or decision-making responsibility is also entitled to request and receive information about the child from the other parent, or from third parties (such as a school or daycare provider).
The changes to the Divorce Act also encourage parents to develop a parenting plan, which is a written agreement between the spouses that addresses parenting time and decision-making responsibility.
In making a parenting order, the court will include any parenting plan agreed to by the parties, unless it is found not to be in the child’s best interest. Justice Canada has developed a Parenting Plan Tool to assist parents in developing a parenting plan.
Addressing Family Violence
Family violence includes various forms of abuse, mistreatment or neglect that adults or children may experience in their intimate, family or dependent relationships. Family violence can have a profound effect on children, and these impacts are similar to those of direct abuse.
Evidence-based definition of family violence: The new Divorce Act defines family violence as any conduct that is violent, threatening, or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. It also includes direct or indirect exposure of a child to such conduct. The new Divorce Act specifically recognizes that conduct that falls within this definition, may not necessarily constitute a criminal offence.
Coordination of Court Proceedings: When the court is making a parenting order, or a child or spousal support order, the court will be required to consider the existence of any civil protection, child protection or criminal proceedings or orders that involve the parties and are pending or in effect.
Best Interests of the child criteria: The Divorce Act amendments require that the court consider family violence and its impact on the ability and willingness of a parent who engaged in the family violence, to care for and meet the needs of the child.
New Duties for Parents
· Under the new Divorce Act, people with parenting time, decision-making responsibility, or contact with a child will be required to exercise their responsibilities in a manner consistent with the best interests of the child.
· Parents will be required to protect their children from conflict arising from their legal dispute.
· Where appropriate, parents will need to try to resolve their disagreements through family dispute resolution (such as mediation, collaborative processes, negotiation or arbitration).
· Parents will also be required to provide complete, accurate and up-to-date information as required. This may include income and asset disclosure, and information about other orders and proceedings.
· The changes to the Divorce Act also address what happens when a spouse wants to move away from the other spouse. To determine what steps you should take, or if your move qualifies as a “relocation”, please see “Moving with a Child – Changes to the Divorce Act in 2020”.