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The New Family Law Rules - The Changes to the Federal Divorce Act

Royal Assent was passed onto Bill C-78 to amend the Federal Family law in Canada related to divorce, parenting, and enforcement of family obligations. This article will focus on the changes related to divorce and parenting. 


These new major changes to Canada’s Divorce Laws, were to take into effect on July 1, 2020. However, due to the unexpected case of the COVID-19 pandemic, the Government of Canada has had no choice but to defer the changes to the Divorce Act- they will now come into force on March 1, 2021.


It has been over Twenty (20) years since there has been any major and substantial changes to the Canada Federal Family Laws. the four (4) main objectives are as follows:

  1. To promote the best interests of the child;
  2. To Address family violence;
  3. To help reduce child poverty; and
  4. To make Canada’s family justice system more accessible and efficient.

In Canada, Family Law is shared by two jurisdictions: The Divorce Act applies to married couples who ate divorcing, and the Provincial or territorial legislation applies to couples or common-law couples and; married couples who are separated but not divorcing. 


The focus of the changes to the Divorce Act will promote a “child’s best interests” a its top priority in the following provisions:

 

“Best Interests of the Child”

 

There is no one-size-fits-all when it comes to a parenting arrangement and this best interest criteria will help courts tailor parenting arrangements for each child based on their specific situation. There is a list of factors when to consider the child’s best interests, the main conditions of the child’s physical, emotional, and psychological safety and wellbeing. The other additional factors include: the nature and strength of the child’s relationship with parents and other important people in their life such as grandparents and other family members. The child’s linguistic, cultural, and spiritual heritage and upbringing, including Indigenous heritage, and the child’s views and preferences.


Changes to a Child’s Residence- There will be a new requirement that if there are any notice of plans to move that any key information about potential moves are shared with others who have responsibilities for the child in question. These notice requirements can be modified by a court where safety issues become a concern and these new guidelines will help courts determine whether the move would be allowed and if it is in the “child’s best interests”.


Child-focused Terminology- There will also be changes to the wording used to describe parenting arrangements and there will be a greater emphasis put on the actual tasks of parenting. Under the Divorce Act. this will replace orders for custody and access. 


The new wording is neutral and emphasizes that both the former spouses will be caring for their child when the child is with them. This will refrain people from the idea of “winner” and a “loser”.


The order will set out each parent’s “decision-making responsibilities” and “parenting time” - depending on the child’s best interests, both parents may have parenting time. 

 

Family Violence  

 

The amendments to the Divorce Act will fill the gap of including measures dealing with family violence. For the purposes of the Divorce Act, family violence is defined as any conduct that is: violent, threatening, a pattern of coercive and controlling behaviour, causes a family member to fear for their safety and directly or indirectly exposes a child to such conduct. 


Before courts make any parenting, contact or support orders, they will first look to see if there are any other proceedings or orders involving any of the parties pertaining to a matter. This is to avoid any situation where, for example, a contact or parenting time ordered by a family court may conflict with a restraining order against one of the parties. 


The courts will also assess the seriousness of any violence the family violence that took place and how it could affect future parenting when deciding what parenting arrangements are in the best interest of the child.   

 

Reducing Poverty and Making the Canada’s Family Justice system more Accessible and Efficient

 

The new amendments will provide more tools to establish and enforce child support and lessen the need for expensive court costs. Spouses and children are at a much greater risk of poverty if they do not receive the financial support they are owed once a divorce or separation takes place. 


One of the biggest changes will be the federal government being able to release tax information to help determine accurate child support amounts. However, in order to maintain and follow Canada’s privacy laws, only judges or maintenance enforcement programs will be allowed to obtain this type of private information. 


The amendments to the Divorce Acts are set in place to provide other family dispute resolutions processes that offer a fast and less expensive way to encourage a faster process ten continuing in litigation. There will be more administrative processes promoted to determine items such as recalculation of child support payments so that these types of issues are not dealt within court and are dealt with by these administrative agencies.

 

Things to keep in mind regarding current and future orders

  • If there is an existing court order or agreement, the parties can continue to rely on their existing court order or agreement after the new law comes into effect.

  • If the parties are applying for a court order and the new rules come into force before they get the order, the new Divorce Act rules will apply.

  • If the parties want to change a court order or an agreement after the changes to the law come into effect, the New Divorce Act rules will apply.

Tina Gill

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