What You Need to Know About the new Divorce Act in Canada

 

Important changes to the Divorce Act came into force on March 1, 2021. These were ushered in by the long-awaited Bill C-78. This marks the first major amendment to federal family laws in more than 20 years. Here is an overview of the key changes for married people going through separation and divorce in BC.

 

Modernization of family law

 

The new Divorce Act is intended to modernize family law, making it more responsive to families’ needs. The four key objectives of the new Divorce Act are:

  • promoting children’s best interests,
  • addressing family violence,
  • helping to reduce poverty, and
  • making Canada’s family justice system more accessible and efficient.

To achieve these objectives, new concepts have been added, existing family law concepts have been refined, and terminology has been updated particularly as it relates to parenting after separation. It is important to be aware of the amendments as the new Divorce Act applies to any case decided on or after March 1, 2021 even if the case was started but not determined before March 1, 2021.

 

“Parenting orders” – not custody and access

 

The terms “custody” and “access” have been removed from the Divorce Act. That language had its roots in the outdated concept of children as property. Those terms have been replaced with language focused on the parents’ responsibilities for their children with the goal of helping to reduce parental conflict and helping to focus on the needs of the children. The Divorce Act now uses language and concepts that are similar to those used in BC’s Family Law Act to describe where the children will live and how decisions about them will be made. Now, instead of a custody order, the courts will make a “parenting order” under the Divorce Act which can set out:

  • Parenting time: This is the time during which someone in the role of a parent is responsible for a child. This includes time when the child is not physically in the care of that person such as when the child is at school or in daycare.
  • Decision-making responsibility: This is the responsibility to make significant decisions about a child such as decisions about a child’s health and education. Decision-making can be joint or sole. Certain areas of decision-making can also be allocated amongst each parent where for example one parent may be responsible for health decisions and another parent may be responsible for education decisions.

 

Contact orders for non-spouses

 

Both spouses, a parent, and any person currently in or seeking a parental role in the life of a child can apply for a parenting order. When someone else (e.g., a grandparent) wants time carved out of a child’s schedule to visit or communicate with the child, they must apply for a “contact order.” The applicant will have to seek leave of the court to bring an application for a contact order. The decision about whether to make a contact order is based on the best interests of the child.

 

Enhanced focus on best interests of the child

 

The courts have long considered the best interests of the child in decisions about parenting. The Divorce Act now requires courts to consider only the best interests of the child in such decisions. Specific best interests of the child criteria are now set out in the Divorce Act to provide guidance for the court. Factors include the child’s age, the nature of the child’s relationship with each spouse and any family violence. Where conflict arises between two or more of these factors, the courts are required to prioritize the child’s physical, emotional and psychological safety, security and well-being. Gone is the “maximum contact” principal. There is no presumption of equal or shared parenting. In allocating parenting time, the Divorce Act instead requires the court to 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.

 

Family violence and its impact on the best interests of the child

 

Prior to the 2021 amendment, the Divorce Act made no reference to family violence. Now, the Act contains an expansive definition of “family violence” as meaning any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person and in the case of a child, the direct or indirect exposure to such conduct. The Act now requires the court to consider the relevance of any family violence to the parenting arrangements for a child and contains a provision to promote coordination between criminal, child protection and family law cases.

 

Framework for changes of residence and relocation

 

Relocation—that is, moving a child after separation and divorce—is one of the most litigated family law issues. The old Divorce Act did not contain specific guidance, so the courts developed case law to help determine when relocation might be permitted. The new Divorce Act sets out a framework designed to provide more certainty and predictability, and hopefully to reduce the need to litigate. The definition of “relocation” is relationship based and child-centered. The court will ask if the move is likely to have a significant impact on a child’s relationship with someone who has or is applying for parenting time, decision-making responsibility or contact. Anyone who proposes a relocation must first provide a notice that includes proposed new parenting and contact arrangements. The Act also specifies the form, content and timing for notice and rules for objecting to a proposed relocation.

 

Get up-to-date legal advice from an experienced divorce lawyer

 

A lot has changed under the new Divorce Act and a lot has stayed the same. For example, there were no changes to the grounds for divorce, how to apply for divorce, or the parts about foreign divorce orders. Family law is complex and both the new federal Divorce Act and BC’s Family Law Act have rules that may apply to your case. If you have questions about what has changed or how the law applies to your circumstances, please contact Valerie M. Little today for advice.

For over 30 years, Ms. Little’s practice has been exclusively devoted to issues of family law in the Lower Mainland including Burnaby, Coquitlam, and New Westminster. No matter what family law questions or issues you might be facing, you will receive attentive care, understanding and guidance about the best way to resolve your family law dispute taking into account the latest laws in effect in Canada.

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