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Previously announced changes to the Divorce Act have recently come into effect which will impact married parties across Canada (common-law and relationships outside of marriage are governed provincially and territorially). The changes, which were given Royal Assent back in the summer of 2019 are in force as of March 1, 2021. The changes to the Divorce Act are the most significant in over 20 years. The changes were designed to accomplish a number of goals, which we have outlined below.
Promoting the best interests of the child
While the best interests of the child have been the most important factor to consider when making determinations related to a child, the changes to the Act set out a list of specific factors that courts must consider when deciding what will be in a child’s best interests. In addition to the child’s physical, emotional, and psychological safety and wellbeing, other factors are:
- the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
- the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
- the child’s views and preferences
The government as acknowledged that while the factors to consider have not been set in law, there is no one-size-fits-all approach, and that each child and family is different. We can expect to see these factors come into play when parenting arrangements are being determined.
Child-focused terminology
In addition to the factors used to determine the best interests of the child, the changes to the Act also introduce new terminology to make discussions more child-focused while also placing greater emphasis on the “actual tasks of parenting.” “Decision making responsibilities” will be used to refer to making decisions on behalf of a child. Meanwhile, “parenting time” will be used in place of terminology such as “custody.”
Changes to a child’s residence
It’s not uncommon for a parent with custody of a child to want to move at some point. The changes to the Act now require the parent who wants to move to give notice of their plans to the other parent. Courts are also directed to consider whether the move would be within the child’s best interests.
Family violence
Despite the impact that family violence can have on a child, it has not yet been addressed by the Act. With the changes in effect, family violence is now defined as conduct that is:
- violent
- threatening
- a pattern of coercive and controlling behaviour
- causes a family member to fear for their safety
- directly or indirectly exposes a child to such conduct
Courts are now directed to take issues of family violence into account when determining parenting arrangements and what is in the best interests of the child. Courts must also consider whether proceedings outside of family court, such as in criminal court, will conflict with family court orders.
Making the family justice system more accessible and efficient
The government has also introduced measures that it hopes will make access to the family justice system easier and more affordable. It summarizes these measures as follows:
- Provincial child support administrative services will be able to perform some tasks currently left to the courts, making it faster, less costly and less adversarial to determine or recalculate child support amounts
- Provincial recalculation services will be allowed to recalculate child support at any time if needed, instead of on a fixed schedule
- The process of varying a support order for parties living in different provinces or territories will be streamlined, allowing only one court to be involved instead of courts in both jurisdictions
- Legal advisers will have to encourage clients to use family dispute resolution processes, where appropriate, to attempt to resolve their family law matters
- Some amendments help make the law clearer, such as correcting inconsistencies in the English and French versions of the law
For more information, please visit the Justice Department’s website.
Contact Gelman & Associates today to meet one of our experienced family law lawyers who will work on your behalf to achieve the best possible resolution to your family law matter. With six locations in Toronto and the surrounding areas, our offices are easily accessible by transit and off-highway. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.
