NEW DIVORCE ACT IS COMING SOON

adam • January 27, 2021

Many changes coming with New Canadian Divorce Act - especially regarding children

January 27, 2021 -

Adam Letourneau, QC, Managing Partner, LETOURNEAU LLP

On May 22, 2018, the government introduced Bill C-78 An Act to amend the Divorce Act. The Bill received Royal Assent on June 21, 2019, and was initially set to come into force on July 1, 2020. The changes have been delayed until March 1, 2021.

Learn more about the new Divorce Act - Changes Explained (from the government website), which gives the new clauses compared to clauses from the old Divorce Act.

Some things to watch out for in your Divorce and family law matters:

Custody and Access

The terms “custody” and “access” have been removed. This is a really big deal in divorce and family law. Instead, the Court will make parenting orders where judges can make determinations of decision-making responsibility and parenting time between the parents. Gone are the old nasty terms custody and access. The hope is that the change in terminology will assist in reducing conflict between parents.

Best Interests of the Child

Each family situation is unique, and parenting orders will depend on the specific circumstances of each family. Equal shared parenting does not work in every circumstance, although it might be appropriate in some situations. Instead, the new Divorce Act says that when “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.”

Bill C-78 now specifically includes factors to be considered regarding best interests of the child. These include:

the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
the history of care of the child;
the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
any plans for the child’s care;
the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
any family violence and its impact on, among other things,
the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Many of these factors are in line with caselaw that has developed over time in the determination of previous custody and access matters, or factors that have been outlined in various provincial statutes, which is applicable to parents who are not married.

Relocation

Traditionally, child relocation in Divorce and separation matters have been very complicated, and often expensive litigation matters because the old legislation did not provide useful guidance to the Courts about this contentious issue. Caselaw did develop over the years, providing criteria to consider. Leading case: the Supreme Court of Canada’s decision in Gordon v Goertz, [1996] 2 S.C.R. 27. However, much uncertainty remained.

The new Divorce Act provides specific factors that should and should not be considered by the court on a mobility application, including the following:

A parent wishing to relocate with the children must provide 60 days’ notice in writing to the other parent of their desire/intention to relocate. The other parent then has 30 days to object to such relocation.
It specifies which parent has the burden of proof in the event the matter moves to court.
If the children spend “substantially equal” time with both parents, a shared parenting arrangement, then the parent who wishes to relocate has to show why the relocation would be in the children’s best interests.
If the children spend the “vast majority” of their time with the parent who wishes to relocate, then the other parent would have to show why it is not in the children’s best interests to move. (this is a huge change!)
In determining whether the move is or is not in the children’s best interests, the Court is to consider the reasons for the relocation, but it is not to consider whether the moving parent would relocate with or without the children. (this is another huge change!)

It is going to take a while to get used to these various changes, as with any legislative change. We will do our best to stay apprised of these and other changes, and how the Court will interpret these legislative changes, and to help our clients to maneuver these changes in their unique circumstances. We know the law. We focus on solutions.

Learn more about the new Divorce Act - Changes Explained (from the government website)

Lear

Consider calling for a free consultation with one of our LETOURNEAU LLP Divorce and Family Law Lawyers at 403-329-4311 to discuss your divorce and family law problems or questions. See you soon.

This article does not constitute legal advice.

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