What you should know about changes to the Divorce Act

What you should know about changes to the Divorce Act

The Divorce Act has recently undergone major changes, which came into effect March 1, 2021. The Divorce Act applies to individuals across Canada who are married and who decide to divorce. In addition to governing the process related to obtaining a divorce, the Act also covers:

  • child support
  • spousal support and
  • child custody or parenting issues.

The changes to the Act mainly focus on the section relating to child "custody," a term that is no longer in use due to the recent changes.

Our team of divorce lawyers can help you determine if and how these extensive changes to the law will affect your divorce.

Changes to Terminology

One of the major changes to the law is the use of different terminology relating to the care of children. The term "decision-making responsibility" replaces the term "custody." Rather than an order for sole or joint custody of a child, you may receive an order for sole, joint or divided decision-making responsibility related to a child.

The term "access" is replaced by the term "parenting time." Parenting time is the time when a child is in the care of a parent. The parent does not need to be physically present the entire time. For example, time that your children spend at school or day care can still fall within your parenting time.

If these terms are already familiar to you, that may be because several provinces have already incorporated similar terms into the provincial legislation governing parenting orders. Alberta, for example, already uses the term "parenting order" rather than "access order."

The term "contact" is introduced and is used in reference to people other than parents who seek an order for time with a child. It is essentially parenting time for non-parents.

The term "habitual residence" is introduced. The habitual residence of the child is used to determine the appropriate jurisdiction for an application in relation to the child.

Presumptions relating to orders for parenting time and decision-making responsibility

A previous presumption in favour of granting custody to the parent who was most likely to promote a relationship between the child and the other parent (known as the friendly-parent rule) has been removed. There is no longer any presumption in favour of any particular order with respect to decision-making responsibility.

Similarly, a previous presumption that parenting time should be maximized with each parent has been removed. There is no longer a presumption that parenting time should be divided between the parents as close to equally as possible.

The best interests of the child in question will be used to determine all orders related to decision-making responsibility and parenting time.

New provisions dealing with family violence

Extensive changes have been made to the Divorce Act to ensure that family violence concerns are taken into account as necessary. The legislation now contains a detailed definition of family violence and requires a court to consider any family violence and its impact on the child during a determination of the best interests of the child.

Other additions to the legislation relating to family violence deal with:

  • supervised parenting time or supervised transfers
  • orders prohibiting the removal of a child from a specified geographical area without the written consent of the other parent or a court order
  • exceptions to notice provisions (regarding change of residence or relocation) for cases involving a risk of family violence
  • coordination between criminal, child protection and family cases.

Changes relating to relocation applications

Those who are hoping to move to another town, province or country with their child will have to navigate a new approach to relocation applications. Significant changes have been made to both the procedures that must be followed by an applicant and to the methods that judges will use to make their decision.

There are now stringent notice requirements that apply to parents with an existing order for custody, access, parenting time or decision-making responsibility that was made under the Divorce Act. The parent who wishes to relocate must provide notice at least 60 days before the planned relocation and the other parent, if they object to the relocation, must respond within 30 days.

The list of criteria that a judge may consider when determining the best interests of the child in relation to a relocation application has been extended. There are seven new criteria, including the reason for the proposed move.

The recent changes have introduced different burdens of proof that may apply in different circumstances. In circumstances where:

  • the applicants have an existing parenting order under the Divorce Act; and
  • the current parenting arrangement reflects that parenting order;

then the following burdens of proof will be placed on the parents during the relocation application. If the parents have substantially equal parenting time, then the parent who wishes to relocate must prove that it is in the best interests of the child to do so. If the parent who wishes to relocate has the vast majority of parenting time, then the parent who is opposing the application must prove that the relocation is not in the best interest of the child.

This will leave many circumstances in which neither parent has the burden of proof, which means that each parent will be required to show the court why their proposed living arrangements are in the child's best interests.

The court is no longer permitted to consider whether, if the court does not grant the order, the parent will relocate without the child or choose not to relocate.

Other additions and changes

Many other changes have been incorporated in the legislation to increase the efficiency of the law and make the law easier and more affordable for individuals to access. These changes include:

  • encouraging the use of out-of-court dispute resolution processes including mediation services and collaborative law
  • authorizing the government to designate a provincial child support service to calculate child support
  • simplifying procedures for obtaining, varying or enforcing a support order when the parents live in different provinces or countries (interjurisdictional support orders)
  • improving the mechanism used to recalculate child support
  • improving access to the law in both official languages
  • incorporating two Hague Family Law Conventions (relevant to resolving family law issues when one parent lives in another country)
  • improving access to income information for use in support applications.

Many of the recent changes to the Divorce Act are only relevant in very specific circumstances. If you have concerns about how any of the changes to the Divorce Act will affect your divorce or any future applications affecting your children, contact one of our divorce and family law lawyers today.

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