By Kathleen Wells, Wells Family Law
The federal government has recently proposed changes to a fundamental piece of Canadian legislation: the Divorce Act . The Divorce Act has not been significantly amended in twenty years, and the new changes aim to make this difficult period in the lives of a couple a bit easier. The amendments hope to meet four main objectives:
- To promote the best interests of the child;
- To address family violence;
- To help reduce child poverty; and
- To make Canada’s family justice system more accessible and efficient.
Divorce Act: Changes to Terminology
Bill C-78, the Bill containing the proposed changes, was tabled by the Liberal government in a bid to make the Divorce Act clearer to understand and easier to read for everyone, not just lawyers. One of the main changes is that terms and ideas will be spelled out in plain language, not legalese. Instead of the phrases “custody” and “access”, terms like “”parenting time” and “parenting orders” will be used. It is hoped that by changing the terminology to less adversarial terms, conflict between the parties will be lessened; the new language will place less emphasis on having winners and losers in the divorce process.
Divorce Act: The Child’s Best Interest
A significant concept in the Divorce Act is that for parties who have children, the best interests of the child will be held to be the most important consideration. However, what the phrase “best interests of the child” means is not defined or clarified. Under the proposed changes, the child’s voice will be considered when determining what is in their best interests; in reality, it is often children who are the most significantly affected when a couple splits up. When deciding what is in a child’s best interest, the court must now consider, among other factors:
- The child’s needs, given their age and stage of development;
- The child’s relationships with their parents, grandparents, and other important people in their lives;
- The history of care of the child;
- The child’s cultural and spiritual background;
- The child’s opinions and preferences;
- Any family violence and its impact; and
- Previous court orders.
The list of criteria is not exhaustive; the best interests of the child remain the most important issue for the court to determine. To the best of the parties’ ability, any child of the marriage is to be protected from conflict arising from the proceedings. The updated Divorce Act also states that in determining the best interests of the child, the court shall not taken into consideration the past conduct of any person, unless that conduct was relevant to the exercise of the person’s parenting time, decision-making responsibility, or contact with the child under a contact order. The proposed legislation also includes changes as to how the residence of a child can be relocated – that is, what happens when the custodial parent wants to move away from the other parent.
Divorce Act: Family Violence
The definition of “family violence” is an important proposed change. Under the current Divorce Act, family violence is not defined. The changes will establish that “family violence” does not include only physical abuse, but also will also include property damage and financial damage caused by a spouse. The definition of “family violence” covers conduct that is violent or threatening, or that constitutes a pattern of coercive and controlling behavior that causes the other family member to fear for their own safety or for that of another person . The definition also covers behavior such as harassment (including stalking), failure to provide the necessaries of life, threatening to kill or harm an animal, killing or harming an animal, and psychological abuse.
Divorce Act: Accessibility & Efficiency
A very common complaint and problem with the Canadian court system is that proceedings are time consuming and expensive. The court system breeds conflict, and even parties that started out the separation process from a relatively civil place often end up feeling bitter, angry, and out of pocket a lot of money. The proposed changes in Bill C-78 aim to make the family law justice system less expensive. Parties are to be encouraged to try and resolve their issues amongst themselves, to the extent that it is appropriate to do so. In addition, lawyers must encourage their clients to seek out alternatives to the court process, such as negotiation, collaborative law, or mediation, in the hopes that separating spouses can divorce more amicably. By doing so, conflicts will be settled in a much timelier, less confrontational, and more cost-efficient manner.
The proposed changes to the Divorce Act aim to make the court process more streamlined and efficient. Separate actions are to be coordinated whenever it is possible to do so – for example, child support issues and protection order applications would be heard at the same time, so that parties don’t have to make more than one court appearance. In order to determine the appropriate amount of child support, parties must release their income tax information. If the income information is not released, the court will have the power to deem an income to that spouse, which will then be used to calculate child support. The purpose of this amendment is that it will allow parties to save time and money by not having to chase down the other spouse for their income information. Judges will be able to set an amount for child support quicker: this is clearly in the best interests of the child.
All of these changes are simply in the proposal stage at this point. Before they become law, they will need to be debated and voted upon by Parliament. However, these amendments are good first steps and they are moving in the right direction. Divorce always involves a measure of conflict: anything that can be done to minimize this is a positive change. Children are often the innocent victims when parties separate. The proposed new changes to the Divorce Act mandate that the court must give primary consideration to the child’s physical, emotional and psychological safety, security, and well being.
If you have questions about divorce and how the proposed changes to the Divorce Act may affect you, please contact Wells Family Law for a free consultation – we are Calgary-based divorce lawyers who are committed to a fast and effective resolution.
 Divorce Act, RSC 1985, c. 3 (2nd Supp.).