The recent changes to the Divorce Act (Canada) were implemented under Bill C-78, which received Royal Assent on June 21, 2019 and came into force on March 1, 2021.  There are a number of changes that Bill C-78 impose, and it is important to familiarize yourself with these changes as they affect your circumstances.  There are new procedures, definitions and terminology, as well as changes to the Rules of Court and the Court forms.

The reason behind the changes to the Divorce Act (Canada) (the “Act”), are fourfold, according to the Department of Justice:  to promote the best interests of children, to address family violence, to assist in reducing poverty, and to make Canada’s family justice system more accessible and efficient.

A marked change to the Act was the terminology and definitions section in Section 2 and also found throughout the Act itself.  Though some provinces had already implemented the change in language in their Provincial legislation, this federal change streamlines and solidifies these terms.  Words such as “custody” and “access”, which have an undesirable connotation of children as property, have been replaced with language such as “parenting order”, “decision-making responsibility” and “parenting time”, or “contact”.   

Parents are now faced with “decision-making responsibility”, which means that they have the ability to make “significant decisions about a child’s well-being”, and this includes decisions respecting their health, education, culture, language, religion and spirituality, as well as significant extra-curricular activities.  The Act furthermore does away with the idea of sole or joint custody, and that has been replaced with sole, joint or divided decision-making responsibility.

The term “Parenting Time” has been defined in Section 2(1) as time that the child(ren) are in the care of the parent, but this does not necessarily mean that there is a need for physical presence during that entire time.  Specifically, when the child(ren) is/are in daycare or school, the parent with parenting time still has them in their care and is responsible for them, but may not have them with them for those periods of time.  If a parent has parenting time with a child or children, they now have the “exclusive authority to make, during that time, the day-to-day decisions affecting the child” unless it is otherwise ordered by the Court.  There was also a note that “parenting time is consistent with the best interests of the child(ren)”.  What is important to note with respect to parenting time is that the new amendments accentuate that there is no presumption that equal parenting time is favoured, but only what is in the best interests of the child(ren).

The overarching principle that the new amendments clarify is that when determining parenting orders, the “only consideration to be taken into account” is the best interests of the child.  This is congruent with our current Family Law Act of British Columbia.  Because it is such a resounding tenant of the new amendments, it is helpful to clearly outline below the factors that the court considered when contemplating what is in the child’s best interests:

  1. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  3. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  4. The history of care of the child;
  5. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. Any plans for the child’s care;
  8. 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;
  9. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  10. Any family violence and its impact on, among other things,
    • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  11. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The reason for this expanded definition is to provide clarity and promote a shared understanding among all those concerned.  It is noted however, that the list is not exhaustive, and that the Court may consider factors that are not on this list.  It is clear that the best interests of the child are the priority of the legislation.

Another definition that has been considerably broadened is that of family violence.  The old section of definitions did not have one for family violence, so we are evolving in this area.  The definition is as follows:  family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behavior or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes

  1. Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
  2. Sexual abuse;
  3. Threats to kill or cause bodily harm to any person;
  4. Harassment, including stalking;
  5. The failure to provide the necessaries of life;
  6. Psychological abuse;
  7. Financial abuse;
  8. Threats to kill or harm an animal or damage property; and
  9. The killing or harming of an animal or the damaging of property.

The Act is now recognizing that significant harm can be done to both victims and witnesses of family violence, and that it can take many forms.

There are now significant changes to the relocation provisions under the Act.  The term “relocation” itself has been redefined with a child-focused definition instead.  There is a new mandatory notice process set out in Section 16, there are different burdens of proof under the Act, and the country has added the best interests factors that are specific to relocation cases.  If you are experiencing a relocation issue, we strongly suggest you get legal advice to address it, as the new amendments are significant.

The amendments in the Act further affirm our provincial understanding of the use of alternative forms of family dispute resolution outside of the court process, and encourage that recourse.  There is a requirement of lawyers in Canada to advise their client of all avenues that are available to them prior to commencing court proceedings, including negotiation, mediation, arbitration or collaborative law. 

Another amendment of note is promoting access to justice by facilitating amendments concerning access to income information.  Under the new duties mandated for parents, according to the Department of Justice, they must provide “complete, accurate and up-to-date information as required, which would include income and asset disclosure, and information about other orders and proceedings.”

The above information is a summary only, and does not encapsulate the entire scope of the amendments.  It is for informational purposes only, and not designed to replace legal advice.