After over 20 years of waiting, Canada’s federal family laws, specifically the Divorce Act, was finally amended. COVID-19 caused the delay of the date to come into effect by almost one year. They were officially passed on June 21, 2019, but because of the adjustments that had to be made, and the uncertainty of the COVID-19, they came into force on March 1, 2021. Despite the delay, the modifications made to the Divorce Act have a considerable impact on the
children involved. The changes focus on promoting the best interests of the child(ren), addressing family violence, helping to reduce child poverty, and making the justice system more accessible to all, and attempt to remove contentious language, for example “custody” which will be addressed in detail below.
Before evaluating the changes in the Divorce Act, a basic understanding of the division of power within Canada allows for a better understanding of what these laws entail for each province, including Quebec. In the Constitution Act of 1982, marriage and divorce is a competency shared between the provincial and territorial governments, and the federal government (art. 92 and 91, respectively). Each sector, provincial and federal, have specific matters within the competency of marriage and divorce which they are permitted to legislate on. That being said, the federal government has jurisdiction over divorce therefore has the power to create and amend laws within that domain. Provinces then have the duty to respect and enforce these laws.
When the federal government amended the Divorce Act, some of the major changes were focused on promoting the best interests of the child(ren). The modifications and additions made provide the courts with more discretion to determine what’s in the child’s best interests, for example discretion to determine where a proceeding will take place. This is determined simply by where the child spends most of their time, but there are exceptions that can be made, once again, at the discretion of the judge hearing the case (section 6(1) and (2), 6.1(2)). Moreover, the law now requires that adverse parties be notified when a potential move may take place (relocation of the child to a new city, province or country). This allows both parties to be aware of the possible change and allows the courts to determine if it is in the child’s best interests. Through these modifications, the legislators make a point to express the need for a child to feel stable within their community, especially during such an unsteady time for them (6.2(1)).
One of the major changes made was with the terms used to describe certain aspects of the divorce process when children are involved. For instance, the words “orders for custody”
have now been replaced with “orders for parenting time”. This new order includes which “decision-making responsibilities” and how much “parenting time” is given to each parent. This modification of terminology used removes the negative connotation of custody and access and litigious nature. This semantic change removes the win/lose nature of proceedings in parties eyes as well as in the eyes of the children. The child is then informed of the amount of time they will have with each parent (section 2(1)).
The legislators modified certain terms and phrases within the Act to be more inclusive of different scenarios. They updated the definition of spouses so as to include former spouses in order to aline with other federal legislation. They also replaced the pronouns “him/her” or “she/he” with “they” to allow inclusivity of gender non-conforming or non-binary people/parents.
The recognition of domestic violence and how to manage said cases is another major change. This was adopted primarily because violence has a serious impact on the family’s wellbeing, notably the child(ren). Domestic violence is a broad term that includes an array of violent acts that unfortunately may occur within a household. The amendments to the Divorce Act not only recognizes the complexity of the issue, but provides the courts with a list of factors to take into account when determining how to allocate parenting-time and decision-making responsibilities. Therefore, the courts must consider all proceedings, including those made in criminal court, in order to ensure there is no conflict, for example with a restraining order. The new legislation provides a non-exhaustive list of acts that would be considered domestic violence. The main elements of these acts would be: violent, threatening, controlling, repetitive, causing a family member to fear for their safety, and/or directly or indirectly exposing the child to abusive behaviour. This amendment recognizes that even if a child witnesses violence within their home, it can be just as traumatizing for them as if they were to experience it themselves.
Furthermore, many of the modifications made were done with the intention to reduce the costs of the entire divorce process and to focus on maintaining an amicable relationship between the parents. In order to reduce costs, aspects of the family justice system have been modified to reduce the involvement of the courts. For instance, in the past, courts had the responsibility of determining or recalculating child support payments, now, provincial child support administrative services have this power. Additionally, the new legislation limits the federal courts role with respect to proceedings from two different provinces. Federal courts only have the obligation to determine which province has the jurisdiction to continue the proceedings that were submitted on the same day, instead of hearing the entire proceeding themselves or involving multiple courts from different provinces (section 3(3), 4(3), 5(3)). Another interesting change is that recalculations of child support can now be done at regular intervals or at the
request of the former spouses, instead of on a fixed schedule (section 25.1(1)). The ability to regularly modify child support allows the amount to accurately reflect both parents’ income without overdue delays.
Most importantly, legal advisers (attorneys, barristers, etc.) will now have a greater obligation to encourage families to use family dispute resolution when possible (section 2(1) and section 7.3). Family dispute resolution is a type of mediation that allows both parents to express themselves with the end goal of coming to an agreement. This method is not only cost-efficient, as they can prevent a family from having to go to court, but is also an indispensable tool that will allow parents to show their child(ren) that they worked together despite the separation or divorce. Children are very impressionable, therefore preventing them from having to pick sides, or listening to their parents argue about various problems and be 100% sheltered from the conflict, will allow them to feel more secure and stable during such trying times.
Overall, the amendments made to the Divorce Act reflect the importance of the child’s best interest, the significance and impact of domestic violence, to reduce the costs of the entire process by making the family judicial system more efficient. These long-awaited changes provide a valuable new approach to family law and the different factors that impact each and every family during a difficult time in their lives. If you have any questions please do not hesitate to contact us.