A recent bill introduced by Canada's Minister of Justice proposes modernizing federal family law in Canada. Bill C-78 proposes to amend the Divorce Act through its first substantive changes in 30 years, and two other Acts, and make consequential changes to the Criminal Code.
Bill C-78 is focused on promoting faster, more cost-effective and lasting solutions to family law disputes, reducing the burden on courts and leading to better outcomes for families. The proposed amendments would advance many goals including: promoting the best interests of the child, addressing family violence, and making Canada's family justice system more accessible and efficient.
The following are highlights of particular interest:
1. Implementing Child-Focused Language
Bill C-78 introduces terminology of "parenting time" and "decision-making responsibility" to replace terminology of "custody" and "access", terms that have been criticized as being outdated and polarizing.
The terms "parenting time" and "decision-making responsibility" focus on the needs of children and the responsibilities of parents. Parents and, when necessary, the courts, will determine "parenting plans" that address parenting time, and decision-making responsibility.
2. Considering Family Violence Impacts on the Best Interests of the Child
Bill C-78 will introduce measures to assist the courts in addressing family violence. The court would have a duty, where appropriate, to consider any civil protection orders, child protection orders, or matters of a criminal nature.
The court's determination of the best interests of the child must consider the presence of any family violence and its impact. Family violence is broadly defined to include physical abuse, sexual abuse, threats of harm to person, pets and property, harassment, psychological abuse and financial abuse.
Bill C-78 recognizes the complicated nature of family violence and requires the court to consider many factors relating to family violence, including, among others, its seriousness and frequency, whether there is a pattern of coercive and controlling behaviour, whether the family violence is directed toward the child, and any steps taken by the perpetrator to prevent further family violence and improve their ability to care for the child.
3. Encouraging Dispute Resolution
Bill C-78 creates duties for parties and legal advisors to encourage the use of family dispute resolution processes, which are processes outside of court used to attempt to resolve matters in dispute. The parties to a proceeding must try to resolve matters through family dispute resolution processes such as negotiation, mediation, and collaborative law. It would also be the duty of every legal advisor who acts in such proceedings to encourage their clients, where appropriate, to attempt to resolve matters through a family dispute resolution process.
4. Giving Children A Voice
The court's determination of the best interests of the child must consider the child's views and preferences, by giving due weight to the child's age and maturity, unless they cannot be ascertained.
The inclusion of this consideration is largely a statutory codification of existing case law and practice, and is consistent with Article 12 of the United Nations Convention on the Rights of the Child.
5. Recognizing the Importance of Supporting the other Parent's Relationship with the Child
The court's determination of the best interests of the child must also consider each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse.
Bill C-78 replaces the existing "maximum contact" principle with a "maximum parenting time" principle, namely, that courts, when making parenting orders, must give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
6. Restricting Relocation
Bill C-78 establishes a framework for the relocation of a child. A person with parenting time or decision-making responsibility in respect of a child and who intends to relocate must give 60 days' notice to any other person who has parenting time, decision-making responsibility, or contact in respect of that child.
If the person intends to relocate a child, the relocation must be authorized by the court or be without objection of the person receiving the notice.
Where there is objection and the court's authorization is required, Bill C-78 would create a shifting onus depending on the child's time in the care of each party. Where a child spends substantially equal time in the care of each party, the relocating party would have the burden of proving that the relocation of the child is in the best interests of the child. However, where the child spends a vast majority of time in the care of the relocating party, the party opposing the relocation would have the burden of proving that the relocation would not be in the best interests of the child.
These provisions may be the most significant changes proposed by Bill C-78. The current Divorce Act has no provisions addressing this area and the Supreme Court of Canada, in its 1996 decision in Gordon v. Goertz, established a highly discretionary "best interests of the child" test for making decisions about relocation.
7. Recognizing Grandparents
A court will be able to make a contact order allowing a grandparent or other person who is not a parent, but who plays an important role in a child's life, to have continuing time with the child. A grandparent must seek leave of the court to make an application for contact or parenting time.
8. Granting the Authority to Calculate Child Support to Provincial Agencies
Bill C-78 proposes that a provincial authority can have the power to calculate the amount of child support and obligate the payor to pay it.
Any spouse who does not agree with the amount of the child support calculated may apply to a court for a reconsideration but must first go through the provincial agency.
Bill C-78 is at an early stage of the legislative process; it had its first reading in May 2018. With only one year remaining in the current legislative session, the bill still needs to complete second reading, committee stage, report stage, third reading, and a similar process in the Senate, in order to become law.
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