Over two million children in Canada live in families with separated or divorced parents. The key law guiding such separation is Canada’s Divorce Act. Bill C-78, passed in February 2019, is the most significant update to Canada’s Divorce Act since it was initially passed in 1985. This legislation modernized the Divorce Act through a variety of objectives with a strong emphasis on protecting children’s well-being in contested divorce proceedings. Many legal professionals consider this new Bill an effort to strengthen Canada’s family justice system as well as championing children’s rights. Below are some of the key objectives that the Bill C-78 aims to facilitate:
1. Promoting children’s best interests:
The Supreme Court of Canada has referred to the best interests of the child as a child’s “positive right to the best possible arrangements in the circumstances.” Bill C-78 re-affirms the best interests of the child is the only consideration in relation to parenting arrangements and establishes a non-exhaustive list of criteria to help retain this exclusive focus. It also introduces a “primary consideration” to the best interests of the child test. This requires courts to consider a child’s physical, emotional and psychological safety, security and well-being as the lens through which all other criteria is evaluated. The test remains flexible enough for parents and courts to tailor parenting arrangements according to the individual child’s needs. The Bill also created a duty for parental responsibilities to be exercised consistent with the child’s best interests. The Bill also addresses the voice of the child by requiring courts to consider a child’s views and preferences based on their age and maturity level. This is consistent with Canada’s obligations under the United Nations Convention on the Rights of the Child and can often be addressed through the use of a child specialist engaging in the dispute resolution process. Furthermore, it introduces framework in the event of relocation to help facilitate dispute resolution recognizing it’s one of the most highly litigated topics in family law. It includes clearer notice requirements and burdens of proof based on existing parental arrangements. Additional elements of the Bill include presenting new parenting access terminology to avoid adversarial language (e.g. custody). These are just some of the elements of the new Bill that promotes children’s best interests. We recommend you speak with a divorce lawyer if you feel you need further clarification on this and how this may impact your divorce proceedings with regards to your child custody rights.
2. Establishing measures to assist courts addressing family violence
Domestic violence is a huge concern for family law judges and there is now a clearer set of factors for the courts’ consideration of the impact of family violence as they relate to divorce proceedings. These set of factors are designed to protect children from psychological, emotional and/or physical harm. It also requires courts to ask about any other civil protection, child protection or criminal proceedings that involve the parties to avoid a family court order conflicting with other court order(s). Although negotiation, mediation or collaboration remain the preferred pathways for resolving differences, Bill C-78 offers the courts measures to stop violence and further protecting children’s well-being.
3. Reducing Child Poverty
In recognition of the billions of dollars in unpaid child support payments in Canada, Bill C-78 offers provinces, territories and individuals more tools to ensure child support payments are paid and enforced. This acknowledges the financial toll divorces can have, especially on single-parent families where children must get the financial support they are legally entitled to. These provisions not only aim to reduce child poverty but also limit the negative consequences of income-related disputes during divorce proceedings on the family justice system.
4. Increasing access to justice and more efficient processes
Another major objective of the Bill is to increase access to justice and ensure more efficient legal processes. The Bill places duties on lawyers to advise clients of the availability of family dispute resolution processes such as mediation, collaborative law and alternative dispute resolution options. Making this obligatory for lawyers – it offers more affordable pathways for families to reach agreements faster and in a more hands-on-manner. Certain exceptions apply, for instance if there are concerns about significant power imbalances where dispute resolution may not be viable. The Bill also aims to improve administrative services to support establishing and recalculating child support faster amongst many things.
Bill C-78 also introduced amendments to other pieces of Canadian legislation including the Family Orders and Agreements Enforcement Assistance Act (FOAEAA) to enable release of income tax information to courts and provincial child support services to support transparency in the fair and accurate calculation of child support amounts. Additionally, the Bill also introduced amendments to the Garnishment, Attachment and Pension Diversion Act (GAPDA) to improve processes related to garnishing federal salaries or diversion of federal pension benefits as may be required for fulfilling child support obligations so parties that are owed can receive funds more quickly.
Bill C-78 was supported by many family law professionals in its development given it highly reformed the national family justice system. At Verhaeghe Law Office – our Edmonton family lawyers stay current with the latest legal developments, including Bill C-78 and are familiar with how they may or may not impact your divorce proceedings. We are here to support you with your family law needs and help you navigate during difficult times. Contact us and book a consultation today by calling 587-410-2500 and speak directly with one of our Edmonton divorce lawyers.
*Please note the content in this blog does not constitute legal advice as every case is unique from one another. We encourage you to seek legal advice for answers related to your divorce and/or family law questions.
