Difference between revisions of "The New Divorce Act"

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 relationship with the spouses, any brothers or sisters, grandparents and “any other person who plays an important role in the child’s life,”

"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 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

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."

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.

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:

* state the address of the new place of residence and any other contact information for the person and the children.

* 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:

* whether each party has complied with any obligations under other family law legislation, like the ''[[Family Law Act]]'', an award or an order, and

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 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

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. (The courts will also have to figure out what "significant impact" means too!) 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?" If it is, then is 30 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]].)

* state the address of the new place of residence and any other contact information for the person.

==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,

* spouses must provide complete, accurate and up-to-date "information," presumably financial information when child support or spousal support is an issue.

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.

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 abusing the other spouse or the children.

* the current ''[http://canlii.ca/t/53z6j Divorce Act]''

{{REVIEWED | reviewer = [[JP Boyd]], November 20, 2019}}