February 17, 2021
On March 1, 2021, Canada’s new Divorce Act will come into force, introducing significant amendments to the Act since it was enacted in 1985, and since child support guidelines were amended in 1997. These changes modernize the language in the Divorce Act to encompass family adaptations outside of a deficit-based framework and include new guidelines that aim to centre the well-being of families and children.1
While the changes to the Divorce Act were initially scheduled for July 1, 2020, circumstances related to the COVID-19 pandemic deferred the amendments from coming into force until March 1, 2021.2
The four stated key objectives of the pending changes to the Divorce Act are:
- To promote the best interests of the child;
- To address the issue of family violence;
- To help reduce child poverty; and,
- To improve the efficiencies and accessibility of the family justice system.3
Terms “custody” and “access” to be replaced
Moving away from the terms of “custody” and “access,” with their proprietary connotations, parents and courts will now approach parenting orders that are focused on “decision-making responsibilities” and “parenting time” between parents. The change in terminology aims to reduce conflict between parents and more clearly convey the functions of parenting determinations under the Act. “Custody” has been replaced with the ability to make decisions regarding children’s care and well-being, and “access” has been replaced with the amount of time that children are to spend with each parent.
Non-court dispute resolution and parenting plans
The amendments state that parents should be encouraged to make their own parenting plans using non-court methods of dispute resolution, including mediation and negotiation, unless this is not appropriate, for example because of family violence concerns or mental health issues. Parents are expected to make decisions based on the best interests of their children, and to recognize that conflict between them is harmful to their children.
Factors surrounding a child’s “best interests” to recognize each family situation is unique
During Committee hearings on proposed changes to the Act, the “presumption of equal parenting” was rejected on the basis that there is no default or one-size-fits-all approach to family situations, as children and family dynamics are diverse and unique. The new Divorce Act includes a provision that when “allocating parenting time, the court shall 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.”
The new act specifically outlines what is to be considered in determining a child’s best interest, including:
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b. The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
d. The history of care of the child;
e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g. Any plans for the child’s care;
h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- Any family violence and its impact on, among other things,
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
j. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
k. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.4
As part of ensuring the “best interests of the child,” the changes to the Divorce Act will allow a “non-parent” – including grandparents and other close family members – to apply for the right to spend a certain amount of time with the children of divorced parents. If this is granted, a legally binding “contact order” would be entered with the court.
Addressing impacts of family violence
The new Divorce Act addresses family violence and intimate partner violence (IPV), recognizing that, even if children are not directly or physically injured, they are harmed by their exposure to violence. The Act also identifies indicators of abusive behaviour, including coercive and controlling behaviour, or injury to pets or deliberate damage to property.
Mitigating risk of child poverty
Spouses and children are more vulnerable to living in poverty after a divorce or separation.5 The updated Divorce Act includes measures to:
- Provide more tools to establish and enforce child support. In some cases, for example, tax information will be made accessible (keeping with Canada’s privacy laws) to those determining accurate child support amounts.
- Lessen the need for costly court processes. By encouraging non-court dispute resolutions, families can avoid the expensive fees that going to court entails.
New framework to help decisions on relocation cases
Situations in which one parent wishes to relocate with a child following separation divorce have long been one of the most contentious issues in family law. The new Divorce Act aims to address this uncertainty by outlining what factors should and should not be considered. The framework’s new components are as follows:
- It requires a parent wishing to relocate with the children to provide 60 days’ notice in writing to the other parent of their desire/intention to relocate. The other parent then has 30 days to object to such relocation.
- It establishes which parent has the burden of proof in the event the matter moves to court.
- If the children spend “substantially equal” time with both parents, then the parent who wishes to relocate must show why the relocation would be in the children’s best interests.
- If the children spend the “vast majority” of their time with the parent who wishes to relocate, then the other parent would have to show why it is not in the children’s best interests to move.
- In determining whether the move is or is not in the children’s best interests, the courts are to consider the reasons for the relocation, but it is not to consider whether the moving parent would relocate with or without the children.
To learn more about changes to the Divorce Act, read the summary available on the Department of Justice website.
- Department of Justice Canada, “The Divorce Act Changes Explained.” Link: http://bit.ly/3nG5Up0.
- Department of Justice Canada, “Government Delays Divorce Act Amendments Coming into Force in Response to Requests from Justice Partners Due to COVID-19 pandemic.” Link: http://bit.ly/3ictOqI.
- L. Crisp, “Substantial Changes to the Divorce Act,” McKercher LLP. Link: http://bit.ly/3oFMOjW.
- Department of Justice Canada, “Strengthening and Modernizing Canada’s Family Justice System.” Link: http://bit.ly/2OJfQPn.