The Divorce Act will undergo its first substantive changes in 30 years. The changes are set out in An Act to amend the Divorce Act (Bill C-78) which received Royal Assent on June 21, 2019. Most of the proposed changes are set to come into force on July 1, 2020. These changes aim to promote the best interests of the child, address family violence, and make the Canadian family justice system more accessible and efficient.
One major change is to replace the terminology of “custody”, “access”, and “custody order” with the terms “decision-making responsibility”, “parenting time” and “parenting order”. These changes support a move to a less adversarial stance when children are a part of a separation and/or divorce. The new language encourages parents to work towards a parenting order with the child’s best interests in mind.
Parents will be able to decide on the allocation of parenting time and decision-making responsibility either through negotiation, or, when necessary, by asking the court to determine the form of parenting orders. In determining the parenting order, the court will refer to a new section in the Divorce Act called “Best Interests of the Child” which replaces the previous section 16 in the Act. This new section outlines both the primary considerations for the court as well as other factors to be considered when determining what decision is in the best interests of the child. The child’s own views will also be considered, with consideration for the child’s age and maturity. The primary considerations when deciding the best interests of the child are found in section 16(2) of the Act, and include the child’s physical, emotional and psychological safety, security and well being. Other factors to be considered are outlined in in section 16(3) of the Act. The Act both defines the concept of “family violence” as well as introduces safeguards to protect against it.
Further, the bill requires legal advisors to encourage parties to resolve their disputes outside of court. Parties must try to resolve their differences through family dispute resolution processes such as negotiation, mediation, and collaborative law.
The bill also emphasizes the importance of supporting both parents’ relationships with the child, as well as allowing the court to make a contact order to allow a non-parent, such as a grandparent, to maintain their relationship with the child. This recognizes the important role non-parents may have in a child’s life.
For more information, go to Justice Canada’s background paper on the amendments.
