Parliament passed Bill C-78, an Act to Amend the Divorce Act, which received Royal Assent on June 21, 2019 and came into force March 1, 2021, amending the Divorce Act RSC 1985 c 3 (hereinafter referred to as the "Act"). The amendments to the Divorce Act are substantial, the first significant updates to the Act since 1985. This article will review many of the significant changes.
No more Custody and Access
The terms 'custody' and 'access' have been replaced with 'decision-making responsibility' and 'parenting time', respectively.
- Decision-making responsibility is the responsibility for making decisions about a child's wellbeing; this includes but is not limited to health, education, culture, language, spirituality and significant extra-curricular activities.
- Parenting time means the time that a child spends in the care of a parent (or other appointed person). This definition is not limited to the time a child is physically with a parent, but when the parent is primarily responsible for the child (for example this would include the time a child is in school).
Best Interest Test
In making decisions regarding parenting, the primary consideration of the court is the best interest of the child. To make this decision, the court is to consider a number of criteria, particularly the specific criteria outlined in s. 16 of the Act. Here is a summary of the criteria:
- child's needs given their age and development;
- nature and strength of the child's relationship with each parent (and other significant people in their life);
- each parent's willingness to support/maintain the development of the child's relationship with the other;
- the history of the care to the child;
- the child's views and preferences considering the child's age and maturity;
- the child's cultural, linguistic, religious and spiritual upbringing;
- plans for child care;
- the ability and willingness of each parent to care for the child;
- the ability and willingness of each parent to communicate and cooperate with one another;
- family violence and its impact; and
- any civil or criminal proceeding that is relevant to the safety, security and well-being of the child.
The list is not exhaustive, the court can consider other things it deems to be important. It is up to the court to determine how they weigh the evidence based on the facts of each case.
It should be noted that extended family members can apply and may also be considered to have contact with a child pursuant to s 16.5 of the Act. A contact order for grandparents is a new addition per the amendment.
Under the Act, parents considering relocating are required to provide the other parent with sixty (60) days' notice, before a proposed move, which also includes a proposal to modify the parenting arrangement. This notice is required both when the parent proposes to move with and without the child. If one parent opposes, they must file their objection within 30 days. The Act provides the court with additional best interest criteria to consider regarding the relocation.
The Act now has an evidence based definition of family violence – the prior version of the Act was silent on family violence issues. Family violence is any behavior that is violent, threatening, a pattern of coercive and controlling, or behavior that causes a family member to fear for their or another person's safety.
To coincide with the Divorce Act changes, provincial government have updated their family law legislation. The Province of Prince Edward Island introduced the Children's Law Act; the Children's Law Act replaces the Custody Jurisdiction and Enforcement Act and the Child Status Act, as well as the child specific aspects of the Family Law Act.
Under the Children's Law Act, the parties to a family proceeding will be required to provide a statement to the court advising that they are aware of following duties:
- exercise their time, responsibility and contact with a child in a manner consistent with the best interest of the child;
- protect the child from conflict arising from the proceeding;
- as much as appropriate, try and resolve matters through dispute resolution processes;
- provide complete, accurate and updated information and comply with any orders in effect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.