Laws and Beyond

OUT WITH THE OLD—WHAT CANADA’S NEW DIVORCE ACT MEANS FOR YOU

August 3, 2021

Family

Since the Divorce Act was enacted in 1985, it remained mostly unchanged. However, as a result of Bill C-78, several amendments to the Act were made effective on March 1, 2021. These modifications will have a substantial impact on the future of Canadian family law.

The Act’s overall tone and language shift the focus from the parent’s entitlement to the child’s rights. If you’re a parent, these new developments may have a significant impact on your parenting. At the very least, the amendments serve as a stark reminder that the rights of the children involved are vital and should never be overlooked. 

CUSTODY AND ACCESS

The changes aim to clarify the law by removing the terms “custody” and “access. Instead, they’re swapped out for:

– Parenting Time: This refers to the amount of time parents spend with their children on a regular basis;

– Decision Making: Which refers to who will make important decisions about the child’s life, such as where they will go to school, what doctors they will see, what extracurricular activities they will participate in, and religious aspects of the child’s life; and

– Contact: Which refers to the time someone other than a parent spends with the child.

These changes serve to reduce the level of ambiguity and better convey the intent of the Act by using simple language, as opposed to language that could possibly cause confusion for non-lawyers. As a result, Parenting Orders will be more basic and understandable for both parents and lawyers.

BEST INTERESTS OF THE CHILDWhen granting a Parenting Order, the new Act reaffirms that the best interests of the child are the only factors to be considered. The Act also goes much further, stating that the Court must consider various criteria, including:
  1. 1. Individual needs of the child, based on their age and special need for stability. Some children, for example, require a higher degree of care, and the Court takes this into account.
  2. 2. The child’s bond with each parent, as well as the strength of that relationship. The relationship between a child and his or her parents is incredibly significant and crucial to their growth. The child’s relationship with his or her parents is not the only factor to examine. The willingness of each parent to cultivate a relationship with the other parent must also be considered by the court. For example, the Court will not take kindly to ostracizing behavior of the parents that serves to alienate the other parent from the child’s life.
  3. 3. Historical childcare roles of each parent will be considered. For example, the fact that the mother took on the majority of child-rearing tasks during the partnership, or vice versa, will be taken into account by the Court.
  4. 4. The Act gives special consideration to the child’s own point of view, with weighting based on the child’s age and maturity level.
  5. 5. The Court is now taking cultural and spiritual upbringing into account, especially if the child is of indigenous descent. These are no longer “minor” aspects, but rather significant factor. For example, the Court is more likely to grant more parenting time to an Indigenous parent if it is consistent with the child’s best interests. This is to ensure that the child is exposed to their Indigenous culture and traditions, and that these practices do not become extinct. This argument can be made in a non-indigenous situation as well. The Court is more inclined to afford parenting time to a parent that has played an active role in the child’s life in terms of spiritual and religious upbringing.
  6. 6. In addition to the child’s unique needs, the Court will consider which parent is better suited and capable of addressing those needs. Some parents are better equipped to deal with the highly specialized needs of special-needs children.
  7. 7. Any other court proceedings that might have an impact on the child’s best interests will be taken into account as well.

FAMILY VIOLENCE

 The scope of what the Court can consider “family violence” has now been greatly broadened to include not only physical violence, but:

– Psychological abuse, including bullying.

– Financial abuse, including withholdings. For example, threatening to withhold money that was to be used for improving the child’s quality of life.

– Threats to kill or harm animals or property. 

– Harassment of any kind.

MAXIMUM CONTACT PRINCIPLE

Before the March 1, 2021 amendments, the preceding Act focused on the Maximum Contact Principle. This approach obliged the Court to grant Orders that maximized interaction with both parents to the extent practicable. The modifications completely eliminate the Maximum Contact Principle from the law. The effect of this change is to ensure that any Order is in line with the overarching goal of keeping with the best interests of the child. 

The inclusion of the Maximum Contact Principle in the old Act could possibly lead to the inference that the Court preferred a shared parenting regime. In some cases, this could prove contrary, and even detrimental, to the best interests of the child. The new Act removes the principle and any inconsistencies that came with it, further reaffirming that the only considerations are the best interests of the child. 

MOBILITY/RELOCATION

 One of the most significant changes in the new Act is how the Court will handle relocation cases. The new Act distinguishes between moves that are classified as relocations and moves that are not classified as relocations.

The new Act goes on to outline two scenarios that are considered relocations.

1. Moves that are not relocations – A relocation is not considered a “move” under the Act if it has no effect on parenting time with the non-moving parent. Moving inside the same city, is usually not considered relocation. The non-moving party has no right to object to moves that are not relocations. 

2. Moves that are relocations – In this scenario, a parent with parenting time and decision-making responsibilities intends to relocate, and this relocation will have a substantial influence on the non-relocating parent’s parenting time. The moving parent must now give the non-moving parent 60 days’ notice, which must include:

  • the date of the proposed move;
  • new address with contact details; and
  • a parenting proposal outlining how contact and decision making will look post-relocation. 

Non-moving parents have 30 days from the date of notice to raise an objection in court. On the other hand, if the non-moving parent does not have any parenting time or decision-making responsibilities, they will have no right to object to the relocation. 

What factors can court consider in looking at the objection?

If both parents have equal parenting time, the moving parent must now demonstrate that the move is in the child’s best interests. If the non-moving parent has more parenting time than the moving parent, the onus of proof shifts to the non-moving parent to establish that the move is not in the child’s best interests. 

Relocation of someone with contact only

If a relocation is proposed by someone who has contact only, the person with contact must provide notice to the parent who has parenting time. If this move by the person with contact will result in a significant impact on how the child exercises their relationship with this person, the notice must be given to the parent with parenting time and decision making, 60 days before the move and outline how the moving-person plans to exercise their contact with the child. 

WHAT DOES THIS MEAN FOR EXISTING ORDERS?

All existing orders prior to the amendments do not change. The amendments to the Act will only affect all orders made from March 1, 2021 onward. If you currently have a parenting order in place, it remains in effect. 

The changes to the Divorce Act might seem daunting. At Laws & Beyond, we understand that navigating the legal system can be challenging. Our goal is to help you through this process as smoothly as possible. Contact Us Now!

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