Proposed Amendments to the Divorce Act (Canada)
The current Divorce Act(Canada) has remained intact for nearly 30 years, however, in 2018 Bill C-78 was proposed, and as a result significant amendments to the legislation are now being anticipated. While Bill C-78 has not yet come into force, the proposed amendments would serve to advance many societal goals, including promoting the best interests of the child, addressing family violence, and bettering Canada’s justice system, both from an access and efficiency perspective.
The highlights of the proposed amendments are as follows:
- Child-focused language. The current Divorce Act (Canada) reflects the use of historic terminology of “custody” and “access”, however, this is to be replaced with the verbiage of “parenting time” and “decision making”. This amendment serves to better address the needs of the children while addressing the associated parental responsibility.
- Family violence and the best interests of the child. When the issue of family violence is present, the court must consider the impact this has on the child so as to uphold the best interests of the child. Where appropriate, the court will have the duty to consider any civil protection orders, child protection orders as well as any orders and/or matters that are of a criminal nature.
- Dispute resolution. The proposed amendments will serve to encourage parties to utilize alternative dispute resolution processes outside of the courtroom.
- Giving children a voice. In order to properly determine the best interests of a child, the court will give weight to the preferences and views voiced by the child, however, consideration must be given to the child’s age and maturity. This amendment is consistent with Article 12 of the United Nations Convention on the Rights of the Child.
- Supporting the other parent-child relationship. The current Divorce Act (Canada) supports a “maximum contact principle”, however, this is to be replaced with the “maximum parenting time principle.” This supports the premise that when granting Parenting Orders, the starting presumption is that it is in the child’s best interests to spend as much time as possible with both parents. Consideration will be given by the court with respect to each parent’s willingness to support the “maximum parenting time principle” by way of supporting, developing and maintaining the child’s relationship with the other parent.
- Relocation restrictions. If a parent intends to relocate, the relocating parent must provide the other parent with 60 days notice, and said relocation must be either authorized by the court or without objection by the other parent. In the event that court authorization is required, Bill C-78 specifies that in situations where the parents have shared parenting of the child, the onus is on the relocating parent to prove the relocation is in the best interests of the child. Should the relocating parent have primary parenting of the child, the onus in on the non-relocating parent to prove that the relocation is notin the best interests of the child.
- Recognizing grandparents.Bill C-78 allows the court to have the authority to grant Contact Orders whereby grandparents, or other persons who are not a parent but play an important role in the child’s life, to have continuing time with the child. In order to obtain a Contact Order, the grandparent, or other person, must seek leave of the court to bring an Application for contact and parenting time with the child.
- Authority for Provincial agencies to calculate child support. Bill C-78 proposes that Provincial agencies, such as Maintenance Enforcement, will have the authority to calculate child support and obligate the paying parent to pay the same. In the event that parties do not agree with the child support calculation, or are of the opinion that the Provincial agency does not have the ability to properly calculate child support (e.g. for self-employed parties), parties have the ability to bring a court Application to reconsider the same.
While Bill C-78 has not yet come into force, as it has not yet competed the appropriate stages in order to be passed, it is anticipated that these proposed amendments will be adopted by the Divorce Act (Canada) in the near future.
If you are considering a divorce, please call Wells Family Law to discuss how these proposed changes may impact your family.