Posted: May 20, 2021
By Brittany Goetz, Associate, and Tracy Zimmer, Student-at-Law

On March 1, 2021, significant changes to the Divorce Act (Canada) (the “Act”) came into effect. Key changes include:

  • The language used in the Act in relation to “custody” and “access;”
  • Defining “family violence;”
  • The factors to be considered in determining the “best interests of the child(ren);”
  • The emphasis placed on dispute resolution; and
  • The implementation of rules regarding the relocation of a child(ren).

In addition to the above changes, all parties to a divorce action are now required to acknowledge and certify that they are aware of certain duties including:

  • Exercising responsibilities in the best interests of the child(ren);
  • Protecting the child(ren) from conflict;
  • Where appropriate, attempting to resolve matters through family dispute resolution;
  • Providing complete, accurate and up-to-date information; and
  • Complying with Court orders until no longer in effect.

Changes the Language in the Act - Parenting

Prior to March 1, 2021 the Act used the language of “custody” and “access.” These terms have now been replaced with “decision-making responsibility” and “parenting time.” This is important as Court Orders entered after March 1, 2021 must now reflect this new language.

Family Violence

Prior to March 1, 2021, the Act did not contain a definition of “family violence.” The Act now contains a broad definition of “family violence,” which includes physical abuse, sexual abuse, threats to kill or cause harm to any person, harassment, failure to provide the necessities of life, psychological abuse, financial abuse, threats to kill or harm an animal or damage property, and the killing or harming of an animal or the damaging of property. Notably, “family violence” also includes, in the case of a child, the direct or indirect exposure to such conduct.

The definition of “family violence” in the Act further clarifies that family violence does not have to constitute a criminal offence. This means that family violence does not need to be established “beyond a reasonable doubt” (a high threshold) to be considered family violence under the Act

The Best Interest of the Child(dren)

Another change to the Act is the confirmation that the “best interests of the child(ren)” is the only consideration to be taken into account when making a Parenting Order. In determining the best interests of the child(ren) the Court must consider the following factors:

  • 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, with siblings and with other important people 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;
  • The child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
  • Any plans for the child’s care;
  • The ability and willingness of each spouse to care for and meet the needs of the child;
  • The ability and willingness of each spouse to communicate and cooperate with one another on matters affecting the child;
  • The presence of family violence; and
  • The presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child.

When considering the above factors, the Act further specifies that a Court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.  

These factors were implemented to promote clarity and shared understanding among parents, family justice professionals, lawyers and judges.  A Court may consider factors not included in the list and may prioritize one factor over another based on the circumstances of the case.

Dispute Resolution

The amended Act also emphasizes and encourages resolution of disputes outside of the Court. Where appropriate, parties must try to resolve matters through Alternative Dispute Resolution including negotiation, mediation, arbitration, or collaborative law negotiation before proceeding to Court.

Relocation

The addition of relocation provisions is also a significant change. The Act now imposes a mandatory obligation on the parties to provide 60 days’ notice of any relocation that is likely to have a significant impact to anyone else with parenting time, decision-making responsibilities, or contact under a contact order. The affected party will then have 30 days to object to the relocation. There is an exception to the notice requirements in situations where there is a risk of family violence and a party obtains a Court order that notice of the child’s relocation is waived.

Another important change regarding relocation are the new provisions dealing with the Burden of Proof. The Act specifies: 

  • The reasons for the relocation;
  • The impact of the relocation on the child;
  • The amount of time spent with the child by each person who has parenting time;
  • Whether the person who intends to relocate the child complied with the notice requirements;
  • The existence of an order, arbitral award, or agreement that specifies the geographical area in which the child is to reside;
  • The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact; and
  • Whether each person who has parenting time or decision-making responsibility has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

How We Can Help

Going through a divorce or separation can be difficult. If you need legal advice on your divorce, separation, cohabitation, parenting matters or any other family law issue, our firm has the expertise to assist you.

To learn more, please feel free to contact a member of our Family Law Team.

Emery Jamieson LLP