Last summer Parliament updated several family statutes, which will come into effect at various times.  Significant changes were made to the Divorce Act, most of which were to come into effect July 1, 2020.  On June 5, 2020, the Canadian government issued a press release that the much-anticipated changes to the Divorce Act will be delayed as a result of COVID-19 to March 1, 2021.

Canada’s Department of Justice also has a very detailed explanation of each and every change to the Divorce Act.

A simplified overview of some of the most significant changes to the Divorce Act are set out below

Changes to Language – Parenting

Effective March 1, 2021, the language of “custody” and “access” in the Divorce Act are going to be repealed and replaced with language such as “decision-making responsibility” for a child and “parenting time”. 

The term “contact order” was introduced to describe the time a third party, who is not a spouse (i.e., a grandparent), wishes to seek with a child.

Earlier court orders that referred to custody and access do not have to be changed at court again after March 1, 2021, to reflect the new language. Also, these changes to the Divorce Act are not, in and of themselves, a reason to change existing orders relating to custody and access.

If you obtain a court order or change an existing court order after March 1, 2021, then those court orders must reflect the new language of the Divorce Act. Many family law lawyers and judges have already started using the new language in separation agreements and court orders.

Priority of Best Interest of the Child

The “Best Interest of the Child” is the only consideration the court may take into account when making a parenting order. Starting March 1, 2021, the factors in determining a child’s best interest include:

  1. the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
  2. each spouse’s willingness to encourage the child’s relationship with the other spouse;
  3. the child’s views and preferences;
  4. the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
  5. the ability of each spouse to care for the child;
  6. the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
  7. the presence of family violence.

When considering the factors, the court’s primary consideration must be the child’s physical, emotional and psychological safety, security and wellbeing (effective March 1, 2021: s. 16(2) of the Divorce Act).

The principle that there should be “maximum contact” between a child and each parent that is consistent with a child’s best interest has been replaced with a new section (s. 16(6) of the Divorce Act):

Parenting Time Consistent with Best Interests of Child

(6) 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.

There has never been a legal presumption that children should equally reside with each parent and the push by different groups to introduce such a provision in the Divorce Act was rejected. A child should have as much time with each parent as is consistent with the child’s best interest.

New Definition – Family Violence

Section 2(1) of the Divorce Act will include, for the first time, a definition of “family violence”, which will come into effect March 1, 2021.

The new definition is set out here:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property; (violence familiale)

The definition is important because it clarifies that family violence does not have to be a criminal offence or be established “beyond a reasonable doubt” (a high legal threshold often described as 99% certain) to be considered family violence under the Divorce Act.

Family violence also includes exposure to children (either as victims or witnesses) of such acts that are violent or threatening or form a pattern of coercive and controlling behaviour or causes a family member to fear for their safety.  The definition of family violence is not “exhaustive” meaning that it is not a “complete list” of behaviour that a court would consider as part of the factors relating to parenting.

The Divorce Act has introduced a new section, section 16.1(8) to specifically address supervision in the context of parenting orders where the transfer of the child between parents or a third party must be supervised and/or that parenting time must be supervised.

Change in Place of Residence & Relocation

The Divorce Act will have a new framework to address changes in residence and relocations that includes: written notice of changes in residence/relocations to be exchanged between parties,  “best interest” criteria for the court to consider and “burdens of proof” in certain situations.

Section 16.8 of the Divorce Act is a new section that will be coming into effect March 1, 2021, whereby a person who has a child under their care must inform, any person who has parenting time or decision-making responsibility or contact with a child if they intend to move the child’s residence. It also spells out that the party’s notice must include both the new address, contact information (e.g., telephone number) of the parent/child and date of the move, in writing.

There is an exception to the new notice requirement in situations where there is a risk of family violence and a party obtains a court order that notice of a change to a child’s residence is waived (or that the notice requirements are modified so that only some information has to be provided). A party can bring a court application without the other party’s knowledge to waive or modify notice to a change in residence in these situations.

“Relocation” has been added as a new definition and refers to a change in the residence of the child or person who has parenting time or decision-making responsibility (or has a pending application before the court for a parenting order) that is likely to have a “significant impact” on the child’s relationship with a person who has:

  1. parenting time;
  2. decision-making responsibility
  3. is asking for parenting time/decision-making responsibility in an application before the court; or
  4. has a contact order with a child.

Section 16.9 of the Divorce Act, which will come into effect March 1, 2021 to address “relocation” of a parent or a child, will also include a responsibility to inform all parties that may be affected at least 60 days before the proposed move. The language of the new section is set out here:

16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

Similar to a change in residence, there is an exception for situations involving family violence where a party can have the opportunity to get a court order (without the other people affected knowing in advance) to waive or modify the new notice requirements for relocation.

Once a Notice for Relocation is provided to the individuals that may be affected, those parties will have 30 days to object and the objection must include:

(a) a statement that the person objects to the proposed relocation;

(b) the reasons for the objection;

(c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and

(d) any other information prescribed by the regulations.

The party and/or child may relocate if:

  1. No written objection is received within 30 days of the moving party giving written notice of the relocation and no existing court order prohibits the relocation; or
  2. They have a court order allowing the relocation

The Divorce Act has added to the factors of the “best interest of the child” test that previously existed, and in the relocation context a court reviewing the issue of relocation will have to consider the following:

  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.

Where a child is living equally with parties the burden of proof will be on the party wanting to relocate to persuade the court that it should allow the relocation.  In situations where the child “spends the vast majority of their time in the care of the party who intends to relocate the child”, the burden of proof lies on the party objecting to the relocation to prove that the relocation would not be in the “best interest of the child”. In all other situations (e.g., the parenting arrangements are not in a court order or separation agreement) each party has the burden of proof to establish whether the relocation is or is not in the best interest of the child.

New Responsibilities For Parents Introduced

Effective March 1, 2021, the Divorce Act will have in force express language (sections 7.1-7.5) to impress parents with the following duties:

  1. Exercising their responsibilities (whether it’s during parenting time or decision-making for the child) in the “best interests of the child”;
  2. Protecting, to the best of their ability, children from conflict as a result of a divorce proceeding;
  3. Where appropriate, trying to resolve matters through family dispute resolution (i.e., negotiation, mediation, mediation-arbitration, arbitration).  In situations where there is family violence or significant “inequality of bargaining power” these family dispute resolution processes may be inappropriate;
  4. Providing complete, accurate and up-to-date information as required, including:
    1. Income and asset/debt documentation
    2. Information about other court orders and proceedings e.g. criminal proceedings
  5. Complying with court orders until they are no longer in effect

In addition, any court document to the start of a proceeding or in response to a proceeding that is filed at court will contain a statement by the party signing it “certifying” that they are aware of their duties described above in the updated Divorce Act.

Resolving Matters Outside Family Court

The updated Divorce Act will also encourage people to look outside the court to resolve disputes about child support/spousal support and parenting that arise after separation. Resolving matters outside of court is commonly referred to as Alternative Dispute Resolution and can involve: negotiation, mediation, mediation-arbitration or collaborative law negotiation.

Lawyers will also be required to inform and encourage clients to resolve matters arising out of separation outside court unless the circumstances make it clear that it would be inappropriate.

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. For more information on changes to the Divorce Act, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.

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