The Divorce Act Changes Revisited

Thème: Family Law juillet 31, 2020 by Jim Jeffcott

About a year ago, I wrote about the amendments to the Divorce Act which we had expected to have come into force by now.  Instead, as a result of the covid pandemic, the date has been extended until March 1, 2021 as amended.  A link to my previous article is included for your reference here.

As a reminder, The Divorce Act is amended in the following ways, including:

  1. replace terminology related to custody and access with terminology related to parenting;
  2. establish a non-exhaustive list of criteria with respect to the best interests of the child;
  3. create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
  4. introduce measures to assist the courts in addressing family violence;
  5. establish a framework for the relocation of a child; and
  6. simplify certain processes, including those related to family support obligations.

The enactment also amends related statutes with respect to enforcement of orders and international conventions regarding enforcement outside of Canada and child abductions.

I focused my comments on family-centered approach to separation and divorce that the new changes to the Divorce Act will implement.

In the meantime, the Attorney General for Ontario has engaged in a consultation with respect to changes to the Family Law Act and the Children’s Law Reform Act as a consequence of the changes that have been enacted by the federal government, although we do not know the outcome of that consultation yet.

The key provisions of the new legislation include:

  • new and neutral, less charged terminology, moving away from the outdated “custody” and “access” and replacing them with “decision-making responsibility” and “parenting time”. The Act refers to “parenting plans” rather than “custody agreements”;
  • the provisions that require parents and their lawyers to think about the harm of conflict on children during and after separation. Family violence is broadly defined in the Act to include physical abuse, sexual abuse, threats of harm to persons, pets and property, harassment, psychological abuse and financial abuse.  The courts are directed to consider many factors relating to family violence in their determination of the issues;
  • efforts to encourage parties to try to reach their own agreements by using out-of-court, consensual resolution processes, such as a Collaborative Process or Mediation wherever possible;
  • new rules for parents who wish to relocate with a child after a divorce. Until now, the issue of relocation has been determined by the courts in accordance with principles laid down over time by previous court decisions.  The new provisions will require a parent who wishes to relocate with a child to provide notice to the other parent (or any person that has parenting time or decision-making responsibility), in advance, and it will require that the person has consent to the relocation or obtains authorization from a court before relocating.  The proposed move would have to be in the child’s best interest.  The responsibility for establishing that it is, or is not, in the child’s best interest will shift depending on who has the child in his or her care the majority of the time.

The Act includes numerous other changes, including giving voice to children’s views and preferences when determining parenting plans and recognizing the importance of the child maintaining as much of a relationship with each parent as is appropriate and giving recognition to grand-parents claims to have contact or time with the children in certain circumstances.

In anticipation of the amendments coming into force, many family law lawyers have made adjustments in their practices and have obtained training about the full range of process options to offer to their clients and to learn more about intimate partner violence and how to better manage disputes that may include some of those elements

At LMR, we have lawyers that offer adversarial as well as consensual methods of dispute resolution.

If you wish to have further information about the changes or if you have a matter which may be affected by the changes, please feel free to contact any member of the Family Law Group at LMR and we will be happy to assist.