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 were 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 laws listed 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 get and 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 when spouses live in the same province or territory aren't changing much at all.

For married people living in British Columbia and Alberta, the changes to the Divorce Act will make the federal law a lot more like the provincial laws. The federal law will use similar language and similar concepts to talk about parenting after separation. The Divorce Act will also talk about moving after separation in a way that's very similar to how British Columbia's Family Law Act talks about the issue.

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, no matter how long you lived together. Any legal problems you have can only be dealt with under the provincial Family Law Act.

Parenting After Separation

When spouses separate, they have to make decisions about how they'll care for the children. These decisions include how much time the children will spend with each spouse, including whether they'll spend time with other people, and about how the children will be raised. Both the federal Divorce Act and the provincial Family Law Act have rules about these issues, and about how the court makes decisions when spouses can't agree.

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. Each spouse has exclusive authority to make day-to-day decisions affecting a child during their parenting time with that child.

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, what sports and other activities they'll be involved in, or if they will be raised in a religion.

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

Parenting time and contact are what the old Divorce Act meant by "access." Decision-making responsibility is sort of what the old Act meant by "custody," but really is a lot more about the rights and responsibilities involved in being a guardian, just like the "parental responsibilities" guardians have under the Family Law Act.

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 Interests 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.

Moving Away

The changes to the Divorce Act will also talk about what happens when a spouse wants to move away from the other spouse, with or without the children, in a way that's a lot like how the Family Law Act talks about moves. The rules change depending on whether the move qualifies as a "relocation."

Relocation means a change in the residence of a child or spouse that may have a “significant impact” on the child’s relationship with a spouse or a person with contact.

Since not all moves will cause this sort of "significant impact," the Act distinguishes between moves that qualify as "relocations" and those which don't.

Moves that Aren't Relocations

When a person who has parenting time or decision-making responsibility wants to move, and the move will not have a significant impact on the children’s relationship with a spouse or a person with contact, the person must give notice of the intended move to anyone else who has parenting time, decision-making responsibility or contact. The notice must:

• be in writing,
• state the date of the move, and
• state the address of the new place of residence and any other contact information for the person and the children.

Moves that Are Relocations

Things get more complicated when the move will have a significant impact on the children’s relationship with a spouse or a person with contact. In cases like this, the person who is planning to relocate, with or without the children, must give at least 60 days’ notice to anyone else who has parenting time, decision-making responsibility or contact. The notice must:

• be in writing,
• state the date of the proposed relocation,
• state the address of the proposed new place of residence and any other contact information for the person and the children, and
• provide a proposal as to how parenting time, decision-making responsibility or contact may be exercised if the move happens.

A person with parenting time or decision-making responsibilities who gets this notice may object to a proposed relocation. To object, the person must file a court application within 30 days of getting the notice. Someone who only has contact is not entitled to object to a proposed relocation.

If a person with parenting time or decision-making responsibilities doesn't object, then the person who wants to relocate may move as long as there is no earlier order that says the person can't move.

If a person with parenting time or decision-making responsibilities objects in time, however, the new Divorce Act says that the court must consider certain factors in deciding whether to allow the move or not. The court must think about:

• the reasons for the relocation,
• the impact of the relocation on the children,
• the time the children have with each person who has parenting time with them,
• whether the relocating person has complied with the notice requirement,
• whether each party has complied with any obligations under other family law legislation, like the Family Law Act, an award or an order, and
• the reasonableness of the person's proposal about how parenting time, decision-making responsibility or contact could be exercised after the move.

That's a little complicated. But it gets worse. The Act also says who has the job of proving that the move should happen or not, and this will change depending on the circumstances:

• if the parties have “substantially equal” time with the children, the person who wants to move has to prove that the relocation is in the best interests of the children,
• if the relocating party has the child for the “vast majority" of the children’s time, the person objecting to the move has to prove that the relocation is not in the best interests of the children, and
• in cases falling in the mid-range between these extremes, both parties have the burden of proof.

The problem is that we don't have a definition of what "substantially equal" means, or of what "vast majority" means. It'll be up to the courts to figure this out, and that's going to take some time. An equal sharing of the children's time, like a week-on, week-off schedule is certainly "substantially equal," but what about when an objecting person who has children for 45 percent of their time? Or 35 percent? Is 35 percent "substantially equal?" And that's why the courts have such an important role in interpreting legislation. (For more information about this part of the courts' job, read Introduction to the Legal System for Family Matters.)

Moves by People with Contact

A person who has contact with the children is required to notify persons with parenting time or decision-making responsibility of their intention to move. The notice must:

• be in writing,
• state the date of the move, and
• state the address of the new place of residence and any other contact information for the person.

However, if the move will have a "significant impact" on the children’s relationship with the person who wants to move, the notice must also:

• be delivered at least 60 days before the move, and
• provide a proposal as to how contact may be exercised when the move happens.

No one gets to object to a move by someone with contact.

New Obligations

The Divorce Act already has special duties for lawyers and the court. The court, for example, can't make a divorce order unless it is satisfied that adequate child support is being paid. Lawyers, on the other hand, have to talk to their clients about the possibility of reconciling and resuming their marriages. The new Act puts new duties on the court, on lawyers and on separated spouses.

Duties of Spouses

Under the new Act,

• people with parenting time, decision-making responsibility or contact are required to exercise those right in a manner consistent with the best interests of the children,
• spouses are required to protect their children from conflict arising from their court case,
• people are required to try to resolve their disagreements through mediation, collaborative negotiation or arbitration rather than by going to court, and
• spouses must provide complete, accurate and up-to-date "information," presumably financial information when child support or spousal support is an issue.

New Duties of Lawyers

Under the new Act, lawyers will be required to inform their clients about the ways they can resolve their disagreements without going to court. Lawyers will also be required to encourage their clients to try mediation, collaborative negotiation or arbitration, and tell them about any family justice services that might help to resolve a dispute or comply with an order.

New Duties of the Court

When spouses are asking for orders about things other than divorce, such as orders about parenting after separation, spousal support and child support, the court must consider the existence of:

• any civil protection orders,
• any child protection proceedings or orders, and
• any criminal proceedings, and any undertakings, recognizances or orders made in those proceedings.

The purpose of this new requirement is to make sure that the court is aware of any legal proceedings that might be going on outside the family law case, so that it doesn't, for example, give lots of parenting time to a spouse who is accused of assaulting the other spouse or the children.

Resources and links

Legislation

• the current Divorce Act
• Bill C-78

Links

• An Overview of Bill C-78

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.