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Difference between revisions of "The New Divorce Act"
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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
The current ''[http://canlii.ca/t/53z6j Divorce Act]'' has been around since 1985. It | The current ''[http://canlii.ca/t/53z6j Divorce Act]'' has been around since 1985. It hadn't changed much over the last 35 years or so, except when the [http://canlii.ca/t/80mh Child Support Guidelines] were introduced in 1997 as a regulation to the Act. On 1 March 2021 it changed a lot. | ||
On 18 June 2019, Parliament passed [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78], | On 18 June 2019, Parliament passed [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78], "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 changes to the ''Divorce Act'', and to the other laws listed in that very long title, came into effect on 1 March 2021. This page provides an overview of some of the more important amendments to the ''Divorce Act.'' | ||
==Introduction== | ==Introduction== | ||
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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, and it applies to them regardless of where they were married. It talks about: | 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, and it applies to them regardless of where they were married. It talks about: | ||
* | *getting divorced and foreign divorce orders, | ||
* | *parenting after separation, | ||
*paying child support and paying for children's expenses, | |||
*paying child support, | |||
*paying spousal support, and | *paying spousal support, and | ||
*changing orders about | *changing orders about parenting after separation, child support, and spousal support. | ||
[https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78] | [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78] has changed how we talk about parenting after separation, and the things the court thinks about when making orders about parenting after separation. It also imposed new duties on married spouses and lawyers, requiring them to try to resolve problems out of court before deciding that a problem has to be resolved in court. It created 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, it added a new test to help decide what should happen when someone wants to move away after separation. | ||
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 | The other parts of the ''[[Divorce Act]]'', the parts 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, haven't changed at all. | ||
For married people living in British Columbia | For married people living in British Columbia, the changes to the ''Divorce Act'' will make the federal law a lot more like the provincial law. The federal law will use similar language and similar concepts to talk about parenting after separation. The ''Divorce Act'' will also talk about moving away after separation in a way that's similar to how British Columbia's ''[[Family Law Act]]'' talks about the issue. | ||
Remember | Remember that 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 handled under the provincial ''[[Family Law Act]]''. | ||
==Parenting After Separation== | ==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. | 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 on those issues when spouses can't agree. | ||
===Parenting Orders and Contact Orders=== | ===Parenting Orders and Contact Orders=== | ||
The biggest change in [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78] is about how we talk about parenting after separation. Say goodbye to "custody" and "access." Instead, | The biggest change in [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78] is about how we talk about parenting after separation. Say goodbye to "custody" and "access." Instead, say hello to: | ||
<blockquote>'''Parenting time''', which | <blockquote>'''Parenting time''', which refers to the schedule of the children's time with each spouse.</blockquote> | ||
<blockquote>'''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.</blockquote> | <blockquote>'''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.</blockquote> | ||
<blockquote>'''Contact''', which | <blockquote>'''Contact''', which refers to the time someone other than a spouse spends with the children.</blockquote> | ||
It's not just the names of these things that have changed. We have to think about parenting after separation differently too. The changes to the ''Divorce Act'' try to focus attention on the rights of children rather than on the entitlements of their parents. As a result, '''both''' spouses have parenting time with their children, not just one of them, and spouses don't have the right to make important decisions for the children, they have the '''responsibility''' to make those decisions. | |||
====Parenting Orders==== | |||
A '''parenting order''' is an order about parenting time and decision-making responsibility. Parenting orders can talk about: | |||
* how parenting time will be divided between spouses, | |||
* how decision-making responsibilities are divided or shared between spouses, | |||
* how spouses communicate with each other, | |||
* whether a spouse's time with the children must be supervised, | |||
* whether the spouses must use mediation, collaborative negotiation or arbitration to resolve disagreements about parenting, and | |||
* whether the "relocation" of a child should be prohibited. | |||
More on relocation in a bit. | |||
The ''Divorce Act'' | |||
Parenting time and contact are what the old ''Divorce Act'' meant by "access," except that it's both spouses who have parenting time with a child, not just one of them. | |||
Decision-making responsibility is sort of what the old Act meant by "custody." It's about the rights and responsibilities involved in being the guardian of a child, and making responsible decisions on behalf of a child. Decision-making responsibilities are just like the "parental responsibilities" guardians have under the ''[[Family Law Act]]''. | |||
Orders about parenting time and decision-making responsibility are called '''parenting orders'''. A '''parenting plan''', refers to the parts of a written agreement between spouses that talk about parenting time and decision-making responsibility. | |||
Orders about contact are, not very surprisingly, called '''contact orders'''. | |||
More on relocation in a bit. | More on relocation in a bit. | ||