The New Divorce Act

The current Divorce Act has been around since 1985. It hasn't changed much in the last 35 years, except when the Child Support Guidelines where introduced in 1997 as a regulation to the Act. It's about to change a lot.

On 18 June 2019, Parliament passed Bill C-78, called "An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act." The amendments to the Divorce Act, and to the other legislation in that very long title, will come into effect on 1 July 2020. This page provides an overview of some of the really important changes to the Divorce Act.

Introduction

The federal Divorce Act is the main Canadian law on marriage breakdown and divorce. It only applies to couples who are or were married to each other, regardless of where they were married. It talks about:

• divorce and foreign divorce orders,
• custody of children,
• access to children,
• paying child support,
• paying spousal support, and
• changing orders about custody, access, child support, and spousal support.

Bill C-78 will change how we talk about parenting after separation, and the things the court thinks about when making orders about parenting after separation. It will also impose new duties on married spouses and lawyers to try to resolve problems out of court before deciding that a problem has to be litigated. It will create a new way to change orders about child support and spousal support when one or both spouses have moved to different provinces. And, there's a new test to help decide what should happen when someone wants to move away with a child.

The other parts of the Divorce Act about divorce, foreign divorce orders, and making and changing orders about child support and spousal support aren't changing much at all.

Remember, the Divorce Act only applies to people who are, or were, legally married to each other. If you never married your partner, the Divorce Act doesn't apply to you. Any problems you have can only be dealt with under the provincial Family Law Act.

Parenting After Separation

Parenting Orders and Contact Orders

The biggest change in Bill C-78 is about how we talk about parenting after separation. Say goodbye to "custody" and "access."

Instead, we'll be talking about:

Parenting time, which is the schedule of the time the children spend with each spouse.

Decision-making responsibility, which is about making decisions about important aspects of the children's lives, like where they go to school, how they get treated when they get sick, or if they will be raised in a religion.

Contact, which is the time someone other than a spouse spends with the children.

Together, orders about parenting time and decision-making responsibility are called parenting orders. A parenting plan, on the other hand, means the parts of a written agreement between spouses that talk about parenting time and decision-making responsibility.

Parenting orders and parenting plans may:

• divide parenting time between spouses,
• divide or share decision-making responsibilities between spouses,
• specify how spouses communicate with each other,
• require that a spouse's time with the children be supervised,
• require that the spouses used mediation, collaborative negotiation or arbitration to resolve any disagreements, and
• prohibit the relocation of a child.

More on relocation in a bit.

Any person can apply for a contact order. Contact orders may:

• say when the person can spend time with the children,
• specify how the person can communicate with the children, and
• prohibit the person from removing the children without the consent of a spouse.

The Best Interest of the Child and Family Violence

The best interests of the children are the only consideration that the court can consider when making parenting orders. That's what the current Divorce Act says, but when the changes become law, the court will be required to "give primary consideration to the child’s physical, emotional and psychological safety, security and well-being" in deciding what is in the best interests of the children, bearing in mind a long list of factors. These factors include:

• the children’s needs,
• the children’s relationship with the spouses, any brothers or sisters, grandparents and “any other person who plays an important role in the child’s life,”
• the spouses’ willingness to support the children’s relationship with the other spouse,
• the children’s views and preferences,
• the children’s cultural and linguistic heritage,
• the ability of each person to care for and meet the needs of the children,
• the ability of the spouses to communicate and cooperate with each other, and
• the presence of family violence.

"Family violence" is defined in the new Act to include physical abuse, sexual abuse, threats of harm to persons, pets and property, harassment, psychological abuse, and financial abuse. Where family violence is a factor, the court must think about another list of factors, including:

• the seriousness and frequency of the family violence,
• whether there is a pattern of coercive and controlling behaviour,
• the extent to which the family violence is directed to a child, or to which a child is exposed to family violence,
• the risk of harm to the children, and
• any steps taken by the person who has been violent to prevent further family violence and improve their ability to care for the children.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, November 19, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.