Updates to the Divorce Act

Intimate Partner Violence

Topic: Family Law July 25, 2019 by Jim Jeffcott

On June 21, 2019 the Divorce Act was amended.  The new provisions are not yet in force.  We are awaiting the Minister’s announcements in regard to the timing of the various changes.

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

  • replace terminology related to custody and access with terminology related to parenting;
  • establish a non-exhaustive list of criteria with respect to the best interests of the child;
  • create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
  • introduce measures to assist the courts in addressing family violence;
  • establish a framework for the relocation of a child; and
  • 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.

The focus of this article is on the new, more family-centered approach to separation and divorce that the new changes to the Divorce Act will implement.

For example, the new Act uses more neutral, less charged terminology, moving away from the outdated “custody” and “access” and replacing them with “decision-making responsibility” and “parenting time”.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”.  These changes reflect terminology which has been used for many years by resolution professionals who have been working with families to resolve their parenting issues.

Another change which reflects new approach are 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.  In the consensual resolution community, this has been a part of the process and considerations for a long time.

The Act will strongly encourage parents to try to reach their own agreements by using out-of-court, consensual resolution processes, such as a Collaborative Process or Mediation wherever possible.  We are hopeful that it will encourage all lawyers who are providing advice to their clients to discuss all the available process options, including the Collaborative Process.  This is encouraging because resolutions which are reached by the parties themselves tend to be more resilient and more tailored to the particular circumstances of the families that reach those agreements.  A possible additional benefit will be fewer family disputes that have to be dealt with in the courts, which may permit the courts to deal with the matters that need to be there in a more timely and efficient manner.

The Act also creates 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.

There are 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.

The changes are bound to have a significant effect on how parenting disputes or claims are resolved in the future.  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.