Changes to the Divorce Act: What You Need to Know
By Kristy Hansen | April 21, 2021
The Divorce Act applies to legally married couples who wish to formally end their marriage through divorce.
Changes to the Divorce Act came into force on March 1, 2021 as a result of Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to Make Consequential Amendments to Another Act.
Bill C-78’s four key objectives, as outlined on the Government of Canada website are:
- To promote the best interests of the child;
- To address family violence;
- To help reduce child poverty; and
- To make Canada’s justice system more accessible and efficient.
Children’s Law Reform Act (Ontario)
Ontario’s Children’s Law Reform Act (the CLRA) applies to separated parents and caregivers who are either not legally married, or are choosing not to divorce at the present time (so, those in “common law” relationships, or married partners not pursuing a divorce under the Divorce Act). As a result of Bill 207, the CLRA has also been amended and reflects the same four key changes to the Divorce Act.
This article outlines four of the most significant changes.
If you have an existing agreement or court order in place, it will not need to change. However, if you want to revisit your agreement or order for any reason (such as a significant change in your situation which affects the children), or if this is a new or ongoing divorce or separation, then this applies to you.
Change # 1: New Terminology
The words “custody” and “access” are no longer in the Divorce Act. These words tend to imply that there is a primary and secondary parent, which is contrary to the traditional goal of ensuring that children have as much time with each parent as is in their best interests (with no presumption of equal time).
The terms have now been replaced with “decision-making ability” (formerly known as custody) and “parenting time” (formerly known as access). Further, if a party who is not a parent (such as a grandparent, aunt, etc.) is entitled to time with the child by order of the court, it will be referred to as a “contact order.”
A person with parenting time is exclusively allowed to make the day-to-day decisions affecting the child during their parenting time.
A person with decision-making ability is able to make significant decisions about a child’s well-being, including those that relate to health, education, significant extra-curricular activities, and culture, language, religion, and spirituality.
Change # 2: “Best Interests of the Child” Takes Priority
When deciding on parenting issues, the only factor courts should now consider is the best interests of the child or children in question.
The previous s.16 of the Divorce Act has been replaced with the following:
16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or contact order.
There are a number of sub-factors that courts can examine when determining a child’s best interests, including:
- The child’s needs;
- The nature of the child’s relationship with each spouse, with siblings, grandparents and other people who play an important role in the child’s life;
- Each spouse’s willingness to encourage the child’s relationship with the other spouse;
- The history of care of the child;
- The child’s own views and preferences;
- The child’s culture;
- The ability of each spouse to care for the child; and
- The presence of family violence (there are more details on this important addition in the next section below).
Change # 3: Family Violence
Until March 1, 2021, family violence was not an official consideration under any section of the Divorce Act.
Now, the court must consider the impact of family violence on the children when making parenting and contact arrangements.
The Act’s definition of “family violence” covers more than physical or sexual harm. It includes:
- Threats to kill or cause bodily harm to any person;
- Threats to kill/harm or killing/harming an animal;
- Threats to damage and/or damaging property;
- Harassment, including stalking;
- Failure to provide the necessities of life;
- Psychological abuse; and
- Financial abuse.
Change #4: Mobility and Relocation
The new Divorce Act has changed the requirements for parents intending to relocate in situations where there is already an existing Order (pursuant to the Divorce Act) that was made either before or after these changes were made to the legislation. Previously, a parent was only required to file an application with the court requesting permission to relocate with the child if the other parent objected to the move.
Now, any parent who plans to move (even locally) must provide written notice to any person with whom they share parenting and/or decision-making ability.
Notice must be given at least two months prior and include all relevant details such as the date of the proposed move, the new address and contact information, and a proposal as to how parenting time, decision-making ability or contact (as applicable) could be exercised.
Once notice is provided, the other parent(s) will have 30 days to object, in writing, by either providing an objection form to the person proposing to move or by filing an application with the court.
The decision regarding the child’s relocation will be made by the court on the basis only of the child’s best interests, taking into account seven additional “best interests” criteria in addition to those that we outlined in the Change #2 section.
To learn more about these changes to the Divorce Act, read the summary available on the Department of Justice website. And, you can contact Henderson Family Law to set up a consultation with a family lawyer.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.