The current Divorce Act (Canada) (the Act) has remained intact for nearly 30 years. After extensive consultation, the Parliament of Canada has passed substantial chances to the Act, which were to come into force on July 1, 2020. However, since March 2020 and the arrival of the SARS-CoV-2 Pandemic, most of us have had quite enough change, and the federal government prudently delayed implementation until March 1, 2021.
These changes will serve to advance many societal goals, including promoting the best interests of children, addressing family violence, and improving access to and efficiency of Canada’s justice system.
Highlights of the changes include:
- 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 focus the parties on the children as dependents with needs rather than objects to take “custody” of. Although the Courts have been alive to the needs of children and their vulnerable place in society, regardless of the word used, this update in language is a meaningful statement from Parliament that kids come first.
- Family violence and the best interests of the child. When family violence is present or alleged, 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 Act will now 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 children, 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 change is consistent with Article 12 of the United Nations Convention on the Rights of the Child and the Family Law Act (Alberta). It is also a nod to the Alberta Courts system, which has long grappled with giving children input, but not decision making.
- Supporting the other parent-child relationship. The current Divorce Act (Canada) supports a “maximum contact principle”, which asks Courts to try to maximize the child’s contact with both parents. However, this is to be replaced with the “maximum parenting time principle.” This language change supports the shift away from children as objects to fight over to children dependents with needs, because it no longer diminishes the “other parent” to the status of “contact parent”. It also helps confirm that it is not “contact” that is in a child’s best interests, but “parenting”. Consideration will be given by the Court 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 of notice and the relocation must be either authorized by the Court or without objection by the other parent. In the event that Court authorization is required, the Act now specifies that in situations where the parents have shared parenting of the child, the onus is on the relocating parent to prove that 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 not in the best interests of the child.
- Recognizing grandparents. Another significant change relates to grandparents, or close family members, who are recognized for the first time in the federal Divorce Act. The Court will have the authority to grant Contact Orders so that grandparents, or other persons who are not a parent but play an important role in the child’s life, will be able to remain within the child’s life during the disruptive divorce. In order to obtain a Contact Order, the grandparent, or other person, must seek leave of the Court to bring an Application for contact with the child. However, this standing to seek leave grants these important family members more rights than they currently have now.
- Authority for Provincial agencies to calculate Child Support. The amended Act will support families financially by providing that Provincial agencies, such as the Maintenance Enforcement Program here in Alberta, 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 re-calculation, or are of the opinion that the Provincial agency does not have the ability to properly calculate Child Support, parties have the ability to bring a Court Application to reconsider the re-calculation.
- Canada Revenue Agency can disclose tax returns. Parties seeking financial information to calculate income for Child and Spousal Support have to rely on compliance from the other party. With the new Act, Canada Revenue Agency (CRA) will be able to release a party’s tax return for the other party’s review. With certain strict limits on the use of the information, of course.