Finally Here! A Glance at the Much-Anticipated Changes to the Divorce Act

On March 1, 2021, substantive changes to the Divorce Act (“Act”) came into effect. The changes are aimed at promoting the best interest of the child, improving the accessibility and efficiency of the family justice system, reducing poverty and addressing family violence, finally.

For the first time ever, the Act requires that the existence of family violence be factored into the determination of what parenting arrangements are in the best interests of the child. The definition of family violence in the Act is expansive but it is by no means exhaustive, and can include behaviours which are cumulative or prolonged in nature, such as coercive controlling behaviour, or conduct which may otherwise be difficult to establish. The absence of family violence from the Act and its silence on the impact of such violence has long been condemned for exposing survivors of gender-based violence to further abuses and barriers in the family justice system.  The inclusion of such an expansively defined term and the requirement that family violence be factored into the best interests of the child should usher a more holistic approach to determining parenting issues.

Moreover, negatively-charged terminology such as “custody” has now been replaced by “decision-making” and “parenting time,” and “access” has been replaced by “parenting time” for a spouse and “contact time” for a non-spouse. This new language will be reflected in any orders made or changed after March 1, 2021. Hopefully the change in terminology will neutralize some of the tension that escalates when parents are pitted against each other as either the custody or access parent in family disputes. The parent with custody of the children has historically been perceived as ‘the winner,’ while the parent with access, ‘the loser.’ The polarization of parents as either winners or losers of their children has fueled unnecessary, acrimonious and protracted litigation.

In addition to the removal of negatively-charged terminology, we will see an expansion of the factors in determining the best interests of the child and a prioritization of the best interests of the child as the only consideration in making a parenting order. The expansion of the factors should foster orders which are more child-focussed and sensitive to the individual needs of the child. The factors will include, among other things, the presence of family violence; the child’s cultural and linguistic upbringing, including the indigenous heritage of the child; and, the willingness of each spouse to encourage the child’s relationship with the other spouse.

We have finally said good-bye to the “maximum contact” principle which has been replaced altogether by the requirement that parenting time be consistent only with the best interests of the child.  This should dispel the prevailing myth that each parent is entitled to spend time with a child, or that each parent is entitled to an equal amount of time with a child.

Another important aspect of the recent changes to the Divorce Act is the predictability that those changes will bring to the determination of relocation and/or mobility cases which have largely been inconsistent, right across Canada. The Act now sets out a unified framework for parents to follow, whether they are relocating or changing the place of residence of a child. The Act also sets out the factors which a court must take into consideration when determining whether the relocation or change in place of residence of a child is in their best interests.

Where there is a proposed change in the place of residence of a child, notice will need to be provided in writing to a parent who has decision-making responsibility or parenting time, or contact time with a child. The notice must include the new address, contract information and date of move. The only exception to the notice requirement is where there is a risk of family violence, and if this is the case, the parent will have to obtain an order waiving all or part of the notice requirements.

Relocation, which the Act defines as a change in the place of residence of a child or the parent having parenting time or decision-making responsibility which will have a “significant impact” on the relationship between a child and a parent who has a decision-making responsibility, parenting time, contact time or an application before the court seeking decision-making responsibility or parenting time with a child. In the case of relocation, the parent relocating must provide no less than 60 days notice of the proposed move. The exception to notice is where there is a risk of family violence, and if this is the case, a parent may apply to the court, without notice to the other parent, to waive all or part of the notice requirements. Once notice is provided, however, the other parent will have 30 days to respond with their objection, reason for objection, their view on the proposal for parenting time and provide any other relevant information. The parent proposing relocation may move if no objection is received within 30 days of providing notice or the court allows the relocation.

In determining whether to allow the relocation, the court now has a list of factors to consider, which include, among other things, reason for the relocation, impact of relocation, whether notice was provided, any orders or agreements specifying geographic areas and the amount of time spent with each parent who has parenting time. Where the parents spend an equal amount of time with the child, the burden of proof rests on the moving parent. Where the child spends a vast majority of their time with the moving parent, the burden of proof rests on the objecting parent.

Finally, the Divorce Act now lends credence to alternative dispute resolution (“ADR”) as a viable option for settling family disputes and one which parties should consider before applying to a court. Parties are encouraged to explore ways of resolving their dispute outside of court and lawyers are now required to discuss ADR options, such as negotiation, mediation, arbitration or collaborative negotiation, with their clients and furthermore to encourage them to resolve their disputes outside of court unless it would be inappropriate to do so.  For many ADR professionals who for years have championed the benefits of settling family disputes outside of court, from both a cost and time-saving perspective, this change could not come soon enough and reflects the growing trend in families choosing to stay out of court and stay in control of their outcomes.

The foregoing is not meant to capture all of the amendments to the Divorce Act, only highlight a few important ones. No substantive changes have been made to the determination of child or spousal support, apart from some changes to inter-jurisdictional support. Most of the changes are focussed on resolving parenting issues. The amendments to the Act have necessitated changes to provincial legislation across Canada, including the Children’s Law Reform Act (“CLRA”) in Ontario. The amendments to the CLRA align with the newly amended Act so that the law is applied consistently, both provincially and federally, irrespective of whether parents are married or not.

It will be interesting to see what decisions under the Act will look like after March 1^st, 2021 and how the pandemic will shape those decisions, especially decisions dealing with relocation, seeing as each province has to some degree responded differently to the pandemic and its impact on families.