Today, March 1, 2021, marks the coming into force of significant changes to the Divorce Act. These changes were originally to come into effect on July 1, 2020, however they were delayed to March 1, 2021 due to the COVID-19 Pandemic.
A more detailed summary of the changes can be found on the Department of Justice website found here. The below is a brief summary of some of the more material changes.
Custody/Access v. Decision-making/Parenting Time
The language under the “new” Divorce Act will align with British Columbia's Family Law Act, replacing “custody” and “access” with “decision-making”, “parenting time” and “contact”. This is an easy shift for family law practitioners in BC!
This is important as any court Orders after March 1, 2021 must reflect the correct new language in the Divorce Act.
Broadening the Definition of Family Violence
The new Divorce Act adds a very broad definition of family violence including physical violence, psychological abuse, financial withholdings and killing or harming of animals. The entire definition can be found here.
It also importantly clarifies that family violence does not need to be a criminal offense or proven “beyond a reasonable doubt”, but rather on the civil burden of proof, based on a balance of probabilities.
Best Interests of the Child
Another change to the Divorce Act, which shares familiarity with the Family Law Act, is the confirmation that the “best interests of the child” is the only consideration to be taken into account when determining parenting Orders. Under the new Divorce Act, the factors to consider when determining a child's best interests are:
- the child's needs, given the child's age and stage of development, such as the child's need for stability;
- the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
- each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
- the history of care of the child;
- the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
- the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- any plans for the child's care;
- the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- any family violence and its impact on, among other things:
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Of importance, the new Divorce Act removes the “maximum contact principle” which stated that there should be maximum contact between a child and a parent as this may be inconsistent with the child's best interest. The previously included maximum contact principle was the closest principle in family law to argue a legal presumption of shared parenting (although it was not legally interpreted as such). The removal of this solidifies that in family law, there is no presumption of shared parenting and any parenting time must be determined based on only an analysis of the child's best interests.
The new Divorce Ac also emphasizes and encourages resolution of disputes outside of court. Lawyers will be required to inform and encourage clients to participate in alternative dispute resolution including negotiation, mediation, or Collaborative law. This is also consistent with that requirement under our Family Law Act.
The addition of relocation provisions is one of the more significant changes to the Divorce Act. Again, the changes conform in some ways to BC's Family Law Act in that they have different procedures dependent upon the separated parties have an existing court Order or agreement regarding parenting time and decision making responsibilities.
The new Divorce Act sets out separate rules for three different relocation circumstances:
- The first scenario is when a primary parent of a child wants to move and the move will not have a significant impact on the child's relationship with a person who has parenting time, contact or decision making responsibility. In these cases the person who wishes to move must provide written notice of the date of their move and the intended new address. As the move will not have a significant impact on the child's relationship with other parties, there is no need to object.
- The second scenario is when a parent of a child wants to move
and the move will have a significant impact on the
child's relationship with a person who has parenting time or
contact. In this situation, the person planning to move must
provide 60 days' notice in writing, to any person who has
parenting time, contact or decision-making authority. The notice
- the date of the relocation;
- the address of the new place of residence including contact information; and
- a proposal about how parenting time, contact or decision-making responsibility will be exercised if the person were to move with the child.
If the non-moving person who has parenting time or decision-making responsibilities objects to the move, he/she has 30 days to file an objection. To object, he/she must file a court application. If no objection is filed, then the person who wishes to move is able to do so.
If the non-moving person has contact, but not parenting time or decision making responsibilities, he/she cannot file an objection and cannot stop the relocation.
If an objection is filed, the party with the burden to prove if relocation is or isn't in the best interests of the child depends on their parenting arrangement. If the parties have “substantially equal” parenting time, then the person who wants to move must prove the relocation is in the best interests of the child. If the moving party has the “vast majority” of parenting time, then the person objecting to the move must prove it is not in the best interests of the child. If it's somewhere in between, the parties share the burden of truth.
- In the third scenario, if someone who has contact wishes to move, they must provide written notice containing the date of the move and the new intended address. If this move will have a “significant impact” on the child involved, the person with contact wishing to move must also provide 60 days' notice and a proposal of how their contact will be exercised once the move happens. No one can object to someone with contact moving.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.