By Rod Grierson, lawyer at Galbraith Family Law
1986, oh what a year. Oprah was just starting her decades-long reign as the queen of television, Tom Cruise thrilled audiences with his plane maneuvers in Top Gun, people thought parachute pants were fashionable, and the government of Canada passed a progressive piece of legislation named the Divorce Act. Like parachute pants, and unlike Oprah and Tom Cruise, the Divorce Act has not aged well. In recent years there has been growing consensus among legal scholars, lawyers, judges, and individuals going through the divorce process that the Divorce Act is in need of some freshening up. The Liberal government must have been listening, because in 2018 they passed Bill C-78, which contained many meaningful changes to the Divorce Act. It is anticipated that the changes will come into effect in the summer of 2020. This blog post will provide a few of the most impactful changes to the Act.
Replacing “custody” and “access” with terminology related to “parenting”
The 2019 amendments to the Act represent a paradigmatic shift in thinking about parenting for divorced couples with children. Possibly the most noticeable change is a shift away from the archaic concepts of “custody” and “access” to more child-focused terminology relating to “parenting”. Having their roots in property law, “custody” and “access” connote meanings of possession and ownership. Those in the legal community have long argued that these terms have contributed to the adversarial nature of family law and have created winners and losers in custody disputes. Under the amendments, courts will now make “parenting orders” that allocate or schedule “parenting time” and “decision-making responsibility.”
Similar to access, parenting time refers to the time a person in the role of the parent is responsible for a child, including time when the child is in school or daycare. Parenting time will be incorporated into parenting plans that are intended to be living documents that may be revised as children grow older and circumstances change. Most importantly, the amendments allow for parenting plans to be revised without court involvement, encouraging parents to work together to amend parenting plans as
It is important to note that the amendments do not presume equal parenting time between the parents. The only consideration when allocating parenting time is the best interests of the child test. Courts will only provide equal parenting time if it is convinced that it is in the best interests of the child.
Decision-making responsibility mirrors custody in that it relates to significant decisions about the child’s health and education. However, unlike custody orders, courts will now be able to allocate different decision-making responsibility to each parent. This may be helpful when joint decision-making would not work in all instances, but the parties are able to agree on decisions relating to particular subject matters.
It is hoped that the terminology changes will reduce conflict between the parties, focus on the well-being of the children, and provide greater flexibility to changes in parenting plans.
Promoting the best interests of the child
The best interests of the child has been a longstanding guiding principle in Canadian family law. There is virtually universal consensus that the best interests of the child is the appropriate basis upon which to make decisions related to children. Despite the primacy of the best interests of the child standard, the Act did not offer courts any best interests factors. The 2019 amendments provide a non-exhaustive list of best interests factors and a framework for approaching those factors, namely, that courts shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Special people in a child’s life, such as grandparents, will now be able to seek “contact orders” to be able to spend time with the child. Additionally, the amendments will recognize that when determining the best interests of the child, the relationship of grandparents and other important people in the child’s life shall be considered. There is no presumption, however, that grandparents or other important people in the child’s life will have contact with the child. A person seeking contact with a child must seek leave of the court to make an application for contact or parenting time.
Changes of residence and relocation
One of the most contentious and heavily litigated issues in separation and divorce is residence changes and relocation of children. There has been a great deal of criticism that the current legal framework does not provide sufficient certainty to parties dealing with relocation. The 2019 amendments set out a framework for changes of residence and relocation that includes three broad components:
- Notice of a proposed change of residence or relocation,
- Additional best interests criteria for relocation cases, and
- Burdens of proof that will apply in certain relocation cases.
When applying these principles the court must consider any significant impact the move would have on the relationship with a person with parenting time or decision-making responsibility.
A person with parenting time or decision-making responsibility will be required to provide notice to any person who also has parenting time or decision-making responsibility of their impending move. The move is considered a relocation if it has significant impact on the child’s relationship with others. The relocating person will be required to provide 60 days notice in advance of the proposed move and provide a proposal about how the parenting arrangements could be changed. The notice provisions apply whether or not the person is intending to move with the child.
If a person objects to the move, they will be required to attempt to resolve the issues out of court first. If resolution fails, a person can object to the move by use of a standard form or by filing a court application. If an objection is brought through the standard form, the person proposing the move will have to bring a court application to seek permission to move. If there is no objection 30 days after the notice of move was received, the person proposing the move will be entitled to move on the date stipulated in the notice.
In addition to the best interests of the child criteria, there are seven additional criteria that a court shall consider when faced with a relocation request. In its analysis a court is no longer to consider whether the person would move if they were not allowed to move with the child.
The burden of proof of relocation depends on the circumstances. If parents have equal time with the child, the person proposing the move would have to demonstrate why the move is in the child’s best interests. Alternatively, if one parent has primary responsibility of the child, the parent opposing the move would have to demonstrate why the move is not in the child’s best interests.
The 2019 amendments make explicit reference to the deleterious effects of family violence on children and include several provisions to address family violence. The definition of family violence is defined as any conduct that is violent, threatening, or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. The definition recognizes that incidences of family violence do not necessarily constitute a criminal offence.
The court will be under a duty in any divorce proceedings in which a party seeks a parenting order or child or spousal support order to consider any civil protection, child protection or criminal proceedings involving the parties. When making determinations of the best interests of the child, the court shall consider the presence of family violence and its impact on the ability of a person engaged in family violence to care for and meet the needs of the child.
Access to justice
The federal government has made access to justice a priority in the amendments. One of the ways they have chosen to promote access to justice is by encouraging the use of alternative dispute resolution mechanisms, such as mediation, negotiation, and collaborative law. Parties will now have an obligation to attempt alternative dispute resolutions to the extent that it is appropriate to do so.
This blog post has attempted to provide a brief overview of the upcoming changes to the Divorce Act. The changes are a welcome update to the Act and will hopefully provide individuals seeking a divorce greater certainty in the process and assist in facilitating greater cooperation between the parties throughout the process.