In the summer of 2019, Parliament made a number of changes to the Divorce Act through Bill C-78. The changes came into force on March 1, 2021. On the Department of Justice website, there are detailed descriptions and explanations of all the changes.
An overview of some of the most significant changes is provided below.
Changes to Language Around Parenting
As of March 1, 2021, the Divorce Act removes the language of “custody” and “access.” They are instead replaced with the language of “decision-making responsibility” and “parenting time.” Decision-making responsibility is defined as “the responsibility for making significant decisions about a child’s well-being, including in respect of (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extracurricular activities.” This list is not exhaustive and can include many other important decisions.
Additionally, the term “contact order” was introduced to describe when someone other than a spouse wants time carved out of a child’s schedule to visit or communicate with the child.
|Before March 1, 2021||After March 1, 2021|
|Custody||Decision-making responsibility and parenting time|
|Access (spouse)||Parenting time|
|Access (non-spouse)||Contact order|
Best Interests of the Child
With the changes to the Divorce Act, the court may now only consider the “Best Interests of the Child” when making parenting orders. To determine a child’s best interests, the court shall take into account all factors pertaining to the circumstances of the child. Some of the factors may include:
- The child’s needs, given the child’s age and stage of development
- The nature and strength of the child’s relationship with each spouse, siblings, grandparents, and other significant individuals
- Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
- History of care of the child
- The child’s views and preferences
- The child’s cultural, linguistics, religious, and spiritual upbringing and heritage
- Any plans for the child’s care
- The ability and willingness of each person to care for the needs of the child
- The ability and willingness of each person to communicate and cooperate on matters affecting the child
- Any family violence
- Any civil or criminal proceedings that are relevant to the child’s well-being and security
The amendments make it so that when the courts are determining the best interests of the child, they must prioritize the safety, security, and well-being of the child above all other considerations. Additionally, when the court is allocating parenting time, it should be done in adherence to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Broadening the Definition of Family Violence
Coming into effect on March 1, 2021, the Divorce Act provides a broader definition of family violence as defined in the context of the best interests of the child. This broader definition includes both violent acts and the child’s exposure to such acts. Additionally, it clarifies that family violence does not have to be a criminal offence.
It defines family violence as “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 — and includes:
- Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- Sexual abuse;
- Threats to kill or cause bodily harm to any person;
- Harassment, including stalking;
- The failure to provide the necessaries of life;
- Psychological abuse;
- Financial abuse;
- Threats to kill or harm an animal or damage property; and
- The killing or harming of an animal or the damaging of property
Implementation of Parenting Duties
As of March 1, 2021, the Divorce Act changes indicate a number of parenting duties (s. 7.1-7.5). The duties apply to any person who has been allocated parenting time or decision-making responsibility. These individuals must fulfill these duties in a manner that is consistent with the best interests of the child.
(7.1) Exercising their responsibilities in the best interests of the child
(7.2) Protecting the child from conflict arising from proceedings
(7.3) Attempting to resolve the matters through a family dispute resolution process when appropriate
(7.4) Providing complete, accurate, and up-to-date information
(7.5) Complying with the order until it no longer applies
The Divorce Act has included the term “relocation” and has defined it as a change in the residence of a child or person who has parenting time or decision-making responsibility in a way that will likely significantly impact the child and their relationship with an individual who has parenting time, decision-making responsibility, is seeking parenting time or decision-making responsibility, or has a contact order.
The changes in the Divorce Act implements a new section that addresses changes in residence and relocation. This section states that “a person who has parenting time or decision-making responsibility must provide notice to other individuals that have parenting time, decision-making responsibility, or contact with the child at least 60 days prior to relocation. The notice must include: (a) information on the expected date of relocation (b) the address of the new residence and contact information (c) a proposal as to how parenting time, decision-making responsibility, or contact could be exercised (d) any other information prescribed by the regulations.
After a Notice for Relocation is provided to the individuals who may be affected, there is an opportunity for parties to object. In their objection, they must include the following:
- A statement that the person objects to the proposed relocation
- The reasons for objection
- The views they have on the proposed exercise of parenting time, decision-making responsibility, or contact
- Any other information prescribed by the regulations.
When a court is reviewing the issue of relocation, they must consider the best interest of the child. The changes to the Divorce Act have included new factors for consideration, which includes:
- Reason for the relocation
- Impact of the relocation
- Amount of time each parent spends with the child
- Whether notice was provided
- Orders or agreements that specify geographic areas
- Reasonableness of the proposal; and
- Compliance with family law obligations
The updates to the Divorce Act also include encouragement for individuals to look towards alternative modes of dispute resolution outside of the court. Some of the possible modes of alternative dispute resolution include: negotiation, mediation, mediation-arbitration, or collaborative law negotiation.