Difference between revisions of "The New Divorce Act"

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* prohibit the person from removing the children without the consent of a spouse.
* 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 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 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:
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==New Obligations==
==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.


The bill would impose a number of new duties on parties under sections 7.1, 7.2, 7.3 and 7.4:
===Duties of Spouses===
a) persons with parenting time, decision-making responsibility or contact are required to exercise the right in a manner consistent with the best interests of the child;
b) parties are required to protect children from conflict arising from the Divorce Act proceeding;
c) parties are required to try to resolve a matter that could be the subject of a Divorce Act order through family dispute resolution processes; and,
d) parties must provide complete, accurate and up-to-date information, presumably financial information where support is at issue.
Lawyers would be required to inform of, and encourage parties to attempt, to resolve disputes through family dispute resolution processes and to inform parties of any family justice services that may help a party to resolve a dispute or comply with an order, under section 7.7(2).
Parties would be required to, as lawyers are a present, sign a certificate that they are aware of their duties under the act under section 7.6 when commencing or responding to a proceeding.
3
Duties of the court
The bill would require the court to consider certain other proceedings in corollary relief proceedings, under section 7.8(2):
a) any civil protection orders;
b) any child protection proceedings or orders; and,
c) and criminal proceedings, undertakings, recognizances or orders.


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 court case,
* people are required to try to resolve their disagreements through mediation, collaborative negotiation or arbitration rather than going to court, and
* spouses must provide complete, accurate and up-to-date "information," presumably financial information where support is at 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 Lawyers===
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:
* 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 ''[http://canlii.ca/t/53z6j Divorce Act]''
* [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78]
===Links===
*[https://static1.squarespace.com/static/5b6db734b1059890c89e8172/t/5ba523950d92974174f67c28/1537549206845/A+Brief+Overview+of+Bill+C78+-+Pt+1+-+June+2018.pdf An Overview of Bill C-78]


{{REVIEWED | reviewer = [[JP Boyd]], November 19, 2019}}
{{REVIEWED | reviewer = [[JP Boyd]], November 19, 2019}}
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