A Primer to the Amendments to the Divorce Act

November 14, 2019

BACKGROUND

The last major overhaul of the Divorce Act, which governs issues of custody and support for married persons, was in 1985. In May 2018, the government introduced Bill C-78, which proposed significant changes to the Divorce Act. The bill received Royal Assent on June 21, 2019, and the majority of the amendments to the Divorce Act will come into force on July 1, 2020.

The major changes to the Divorce Act include:

  • changes to general terminology;
  • the introduction of a definition of the “best interests of the child”;
  • a framework for mobility and relocation cases;
  • evidence-based family violence considerations;
  • various other amendments relating to the recalculation and enforcement of support obligations; and
  • changes that will make it easier to deal with proceedings where the parties live in two separate jurisdictions.

The goal of this article is not to explore every change made by Bill C-78 but to provide an overview of the most significant changes.

TERMINOLOGY CHANGES

The amendments to the Divorce Act eliminate references to custody and access.  These changes are being made to remove some of the emotional and proprietary connotations to the existing terms and lower the likelihood of conflict by directing separating parents to focus on the needs of their children.

Instead of custody and access, the Divorce Act will include provisions for the following:

  • Parenting Orders – will outline the responsibilities, rights, and obligations, with respect to children. Parenting Orders may include provisions for both decision-making responsibility and parenting time.
  • Decision-Making Responsibility (formerly referred to as “custody” or “legal custody”) – the responsibility to make significant decisions about a child, such as decisions about a child’s health, religion, language, significant extracurricular activities, and education.
  • Parenting Time (formerly referred to as “physical custody”) – the schedule of where a particular child or children spends their time.
  • Contact Orders – a non-parent, such as a grandparent or extended family member, may apply to the Court to obtain an order to have time carved out of a child’s schedule to spend with the child.

THE “BEST INTEREST” DEFINITION

Currently, the Divorce Act establishes that the only consideration in making an order for custody or access is based on “best interest of the child” but does not provide a definition.  Provincially in New Brunswick, the Family Services Act, has included a non-exhaustive list of considerations, which has been recognized by the Court as also applicable to matters adjudicated under the Divorce Act (CMBE v DJE, 2006 NBCA 88).  The Divorce Act will now feature a non-exhaustive list of factors to consider in determining the child’s best interest, with the primary consideration being a child’s safety, security and well-being. The application of the primary consideration may assist in resolving conflict between any of the other factors. The amended Divorce Act includes the following non-exhaustive factors as considerations in determining the child’s best interest:

  • 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, siblings, grandparents and other important persons;
  • 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, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • Any plans for the child’s care;
  • The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate;
  • Any family violence; and
  • Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

It is important to note that there is no presumption in favour or against equal parenting time (also known as “shared” parenting, which is based on the Child Support Guidelines definition of a parent having the child in their care for 40% of the time).  The only factor is the best interests of the particular child in their particular circumstances.

The amendments to the Divorce Act will provide Courts and litigants with additional guidance on the type of evidence and factors that should be given consideration in coming to determinations about parenting of children.

RELOCATION FRAMEWORK

Mobility cases, where one party wants to move with children, are perhaps the most difficult cases for the Courts, counsel, and, especially, parents and children to deal with.  There is generally very little ground for possible settlement and often the result must be determined by the Court.  As counsel, it also can be difficult to advise parents on the requirements that must be met in order to move.  The amendments to the Divorce Act provide clarity to these difficult issues.

Relocation is defined as a move (by a child or parent) that could have a significant impact on the child’s relationship with a person with parenting time or decision-making responsibility, a person applying for such responsibilities, or a person who has contact with the child under a contact order.  The criteria is that there will be a “significant impact” which is undefined.  The “significant impact” is the difference between a change in residence (for which notice must still be given and new address information provided to the other parent) and a relocation.

In addition to the definition of relocation there are three broad categories of changes:

  • Notice Provisions – The amendments to the Divorce Act provide that 60 days’ notice of relocation must be provided in a prescribed form by the parent wishing to move. The other parent can then file their objection within 30 days of receiving notice of the relocation. If there is no objection within 30 days after the notice was received, and there is no pre-existing court order prohibiting the move, the person proposing the relocation will be entitled to move as of the date proposed in the notice.
  • Additional Best Interest Criteria – The amendments to the Divorce Act include additional considerations for the Court when determining whether or not to allow a move. They are:
    • Reasons for the relocation;
    • Impact of the relocation;
    • Amount of time spent with the child by each person who has parenting time;
    • Whether notice was provided;
    • Orders or agreements specifying geographic area;
    • Reasonableness of the proposal; and
    • Compliance with family law obligations.

Courts are also directed in the amendments to the Divorce Act not to consider whether the parent would move without the child if the move were prohibited and, conversely whether the parent would stay if the move were prohibited.

  • Clarification on the Burden of Proof in Relocation Cases – The amendments to the Divorce Act follow general trends in the case law that in cases with a clear primary caregiver, a move is more likely to be permitted and in cases where there is an existing pattern of shared parenting the move is more likely to be denied. The burdens will operate as follows:
    • If parents spend substantially equal time with the child and share responsibility for the care of the child fairly equally, the person proposing the move would have to demonstrate why the move is in the best interests of the child; and
    • If one parent clearly has primary responsibility for the care of the child—that is, the child is in the care of that parent the vast majority of the time—the parent opposing the move would have to demonstrate why the move is not in the child’s best interests.

Unfortunately, the terms “substantially equal time” and “vast majority” are not defined in the legislation.

FAMILY VIOLENCE

The current version of the Divorce Act does not address the pervasiveness of intimate partner violence in any way.  The amendments to the Divorce Act provide improvements in addressing this in a number of ways.  First, they include a requirement (noted above in the additional criteria relating the “best interest” test) that the Court consider the existence of any civil protection, child protection or criminal proceedings or orders that involve the parties and are pending or in effect. Second, there is an expansive definition of family violence included in the amendments to the Divorce Act.  The definition is: 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 and includes physical abuse, psychological abuse, financial abuse, and the harming or killing of an animal.

OTHER CHANGES

There are additional changes to the Family Orders and Agreements Enforcement Assistance Act [FOAEAA] and the Garnishment, Attachment and Pension Diversion Act [GAPDA] which are intended to ensure the efficient operation of the family justice system.  For example, the FOAEAA will be amended to allow for the disclosure of income information, including information from tax returns, to provincial and territorial recalculation services. There will also now be legislative authority for an administrative recalculation service run provincially for recalculating child support in certain, simple cases.

The amendments to the Divorce Act also add to existing duties for lawyers and also create duties on the litigants. These duties encourage the use of “family dispute resolution processes” which include a range of options such as negotiation, mediation and collaborative law.

POTENTIAL PROVINCIAL CHANGES

As the Divorce Act only covers married persons, the provincial counterpart in New Brunswick, the Family Services Act, will require legislative amendments to bring the two pieces of legislation in line and ensure that all families and children are treated equally before the law, whether or not a marriage has occurred.  The full implementation of the intent behind the amendments to the Divorce Act will require provincial amendments as well. The Province of New Brunswick has launched a consultation period ending November 15, 2019. (see: https://www2.gnb.ca/content/gnb/en/news/news_release.2019.10.0531.html).

CONCLUSION

With the significant changes coming to the Divorce Act and its related legislation in the area of family law, it may be difficult to navigate these changes without a lawyer.  Cox & Palmer has lawyers in all of the Atlantic Provinces who can help you navigate these difficult legal and personal issues.  If you are separating from your spouse, we would strongly encourage you to seek legal advice in all circumstances but particularly in the application and interpretation of the updated Divorce Act, which comes into effect on July 1, 2020.

 

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