Family law touches more Canadians than any other area of law. Over five million Canadians are separated or divorced in the last twenty years. The changes to the Divorce Act make federal law more responsive to the changing family needs.

The key objectives of the changes to the Divorce Act are four-fold:

1.      To promote the best interests of the child;

2.      To address the issue of family violence;

3.      To help reduce child poverty; and

4.      To improve the efficiencies and accessibility of the family justice system.

The Key Changes

Custody and Access

Custody is mostly about how spouses make decisions about their children while Access is about how the children’s time between the spouses’ homes is scheduled and usually refers to the children’s schedule with the spouse who has the least amount of time with them.

Effective March 1, 2021 the term "custody" will be replaced with “decision making responsibility” for a child while the term “access” will be replaced with “parenting time”. The aim of the change in terminology is to focus on parents’ responsibilities for their children and hopefully assist in reducing conflict between parents.

Before March 1, 2021 After March 1, 2021

Custody Decision making responsibility and parenting time

Custody (access spouse) Parenting time

Access (none spouse Contact

Exclusive focus on the best interest of the child in parenting matters

The legislative changes emphasized that the best interest of the child is the basis upon which all parenting decisions are to be made. This was the test under the former Divorce Act, and continues to be the prevailing test in international law and the provincial and territorial family law.

The amendment enhanced the focus on the best interest of the child by:

• Introducing a list of best interest of the child factors,

• Introducing a “primary consideration” that the child’s physical emotional and psychological safety, security and well-being are the paramount consideration, and

•  Ensuring that all parenting decisions regarding children are to be made without any presumptions and based only on the best interest of the particular child. That is, in 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".

To provide consistency and clarity, the new legislation introduces non exhaustive list of best interest of the child factors that the court could consider when making parenting decisions. The list will help parents, family justice professionals and judges determine what is best for the child in a particular case. The amendments introduce a “primary consideration”(s.16.2). When making decisions in the best interest of the child, courts shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. This means that those are the most important factors to consider and take precedence over any other particular best interest of the child factors.

Changes of residents and relocation

The legislative amendments introduced provisions to help parents and courts resolve disputes over relocation after separation and divorce which are not in the current Divorce Act.

The new framework includes:

1.      Notice of a propose change of residence or relocation

• Change of Residence: A person with parental responsibilities under the Divorce Act, who is proposing to change their residence, or that of the child, is required to give notice to any person with parental responsibilities or contact with the child under a Contact Order. The notice would include information about the date of the move, the new address, and contact information.

•  Relocation: A “relocation” is a change in the place of residence of a child of the marriage or a person with parental responsibilities that is likely to have a significant impact on the child’s relationship with a person who has parental responsibility or is applying for parenting time or decision-making responsibility, or a person who has contact with the child under a contact order. Notice is given by way of a Notice of Relocation form at least 60 days before the proposed move and would need to include a proposal about how the parenting arrangement could be modified. The other parent then has 30 days to object to such relocation. The notice provisions apply even when a parent proposes to move without the child.

2.      Additional best interest factors for relocation cases: In determining whether the move is or is not in the children's best interests, the courts are to consider the following seven best interest factors:

1. reasons for the relocation;

2. impact of the relocation;

3. amount of time spent with the child by each person who has parenting time;

4. whether notice was provided;

5. orders or agreements specifying geographic area;

6. reasonableness of the proposal; and

7. compliance with family law obligations.

However, the courts are not to consider whether the parent would relocate if the child’s move were prohibited by the court.

 

3.      Burdens of proof that apply in relocation cases: The new amendment introduces burdens that would apply in specific relocation cases. These burden will provide additional guidance  to parents, legal advisors and courts: the test, however, remains what is in the best interest of the child.

 

Family Violence

Previously, the Divorce Act made no reference to family violence. The Divorce Act amendments that address family violence include:

·Coordination of court proceedings: Family court Judges are now required to consider whether there are any current or pending civil protection, child protection or criminal proceedings or orders relating to the parties.

• An evidence-based definition of family violence: The Act now sets out a broad, evidence-based definition of family violence. “Family Violence” means conduct that is violent, or is threatening, or forms a part of coercive and controlling behavior, or cause a family member to fear for their safety  or the safety of another person. 

• Best interest of the child factors relating to family violence

• Other changes relevant to family violence

 

Changes to promote dispute resolution and improve process under the Divorce Act

These include:

• Encouraging the use of family dispute resolution processes and other family justice services

• Improving administrative child support framework

• Streamlining Inter-jurisdictional processes for establishing and varying support

• Recognizing the right to use either official language before trial courts in proceedings made under the Divorce Act

Conclusion

The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. If you have questions or concerns about how these changes will impact you, call us at 403-362-6411 or email us at israel@waivelaw.com