Changes to the Divorce Act Have Now Come Into Effect. What Do They Mean For You?
Topic: Family Law March 16, 2021 by Jim Jeffcott & Max Laurin
As we advised in previous articles, the Divorce Act has been amended significantly. On March 1, 2021, these amendments came into effect. What are the major changes to the Divorce Act and how might they affect you?
The language of the Divorce Act regarding parenting has been modified significantly, moving away from the contentious concepts of custody and access in favour of the more contemporary decision making and parenting time (contact orders). The Act now contains non-exhaustive criteria defining the best interests of the child and it imposes new obligations on lawyers and parties where a person with decision-making responsibility wishes to relocate with a child. Furthermore, the new Act imposes a duty for legal advisors to encourage parties to consider using consensual dispute resolution processes to resolve their disputes in favour of litigation and to ensure that they have access to family justice services to assist them in addressing the issues which arise from separation and divorce and imposes new duties on parties to consider using such alternatives. The new Act also requires parties and their lawyers to protect children from harm which stems from conflict during and after separation. It also defines family violence and establishes obligations on the parties and on decision-makers to consider the impact of family violence on the family as part of any outcome. Finally, it revamps the process for addressing inter-jurisdictional proceedings.
Duties of Parties
The Act imposes positive duties on parties to:
Exercise any decision-making or parenting time in a manner which is consistent with the best interests of the child.
To protect children from any conflict arising from the process, to the extent possible.
To try to resolve matters using a family dispute resolution process, if appropriate.
To provide complete, up-to-date information required to resolve a matter.
To comply with any order as long as it remains in effect.
To certify that they are aware of their duties.
Duties on Legal Advisors
The Act imposes positive duties on Legal Advisors to:
Discuss the possibility of reconciliation and to provide them with information about counselling and guidance services that might be able to assist the spouses to achieve a reconciliation, where it would be appropriate.
To discuss and encourage the party to use a family dispute resolution process to try to resolve the matter, unless it would be inappropriate to do so.
To advise the party of any family justice services that might assist them to resolve the matters or to comply with an order or a decision that has been made.
To inform the party of his or her or their duties under the Act.
To certify that he or she or they have complied with his or her or their duties
Alternative Dispute Resolution
The Act requires every legal advisor acting in relation to a separation to provide information to the client about alternatives to divorce and to encourage the parties to use family dispute resolution processes to resolve separation issues wherever possible. The Family Law group at LMR, includes lawyers who are able to provide services for parties who engage in consensual methods of family dispute resolution, in addition to alternative adversarial dispute resolution services and litigation. Several members of the Family Law Group are trained as mediators and Collaborative Professionals.
Parenting Time and Contact
In the interest of making more separations and family disputes less adversarial, the new Act removes references to custody and access in favour of parenting time and contact orders. The Act’s parenting provisions empower the courts to make the following orders:
-to allocate parenting time to a party;
-to order that decision-making responsibility rest with one or all parties; and
-to ensure that communication between the child and another party is facilitated during a party’s parenting time.
With respect to contact, such orders enable the court to provide for interaction between the child and a party either through in-person visits or through any means of communication. It also contemplates contact with other family members and important people in the children’s lives.
The concepts of parenting time and contact can intersect in the form of a parenting plan, which must include any arrangement concerning parenting time and contact developed by the parties, unless the court believes that the parenting plan is not in the best interests of a child.
Best Interests of the Child
With respect to parenting and contact orders, the court is directed to take into consideration only the best interests of the child when making its decisions. The new Act provides a non-exhaustive list of factors intended to clarify the elements which may be used to determine what a child’s best interests are. The criteria includes the child’s needs given their age, the nature of the child’s relationship with each party, the child’s history of care and the child’s linguistic, cultural or spiritual upbringing, including Indigenous heritage, among other considerations.
The new legislation directs the court to consider the child’s views and preferences, given their age and maturity, in assessing the best interests of the child.
A major change in the Divorce Act relates to the way in which it addresses the issue of violence between family members. The term violence includes a non-exhaustive list of factors such as coercive or controlling behavior, threats and financial abuse, which are assessed in considering the best interests of the child. The court is directed to consider the impact to family violence in the assessment of the best interests of the child. They are required to consider the particular nature and impact of any such violence upon a child. The members of the Family Law Group are able to consider all potential dispute resolution processes which are available in order to determine the best process for parties to manage matters involving family violence.
Relocation is defined in the Act as a move expected to have a significant impact on the child’s relationship with specified parties. The Act now imposes a process on parties who have parenting time or decision-making responsibilities for a child who wish to relocate to provide at least a 60-day advance notice to the other parties having parenting time or decision-making responsibilities prior to any such move. They are required to provide the other parties the opportunity to discuss any issues which may arise as a result of any proposed move. The court does not need to authorize the move where parties consent. Where the parties do not consent, it is required that the party wishing to relocate proceed to an application or to resolve the issue through some alternative dispute resolution process.
The Interjurisdictional Processes will be the subject of other posts.
The changes to the Divorce Act are extensive and many of them are quite technical. It is too much to try to address in a single blog post. However, the above highlights the most significant of the changes and we hope that it provides a basic overview of those changes. We welcome you to reach out to any member of the Family Law Group at LMR should you like further information or if you require the services of a lawyer or mediator.[ssba]