Update on proposed Divorce Act Amendments
On May 22, 2018, the federal Minister of Justice introduced Bill C-78, a Bill that proposes to amend, among other legislation, the Divorce Act; Canada’s federal family law statute governing divorce, separation and parenting. The amendments are designed to respond to the public (and the legal profession’s) desire for the law to better reflect the realities of Canadian family life.
The Bill addresses three main areas:
- Promoting the best interests of the child;
- Redefining family violence; and
- Access to justice.
The amendments renew the emphasis on promoting the best interests of the child by setting out a list of specific factors that a court must consider, including the child’s physical, emotional and psychological safety and well-being; the nature and strength of the child’s relationships with parents, grandparents and other important people in their life; the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage; and the child’s views and preferences.
The new legislation will replace the traditional terms “custody” and “access” in an effort to make the statute more user friendly. The statute will instead reference “parenting orders” which set out each parent’s decision-making responsibilities and “parenting time” to identify when the child is with each parent. The Bill proposes the creation of notice requirements with regard to geographic relocation (moving out of the jurisdiction) following a divorce, as well as the development of relocation guidelines for parties and the court based on the child’s best interests.
The existing Divorce Act does not include specific measures to address family violence and, in particular, its impact on a child’s best interests. The proposed amendments would include a new definition of “family violence”, whose existence would have to be taken into account in the consideration of appropriate parenting arrangements. Similarly, the court in the family law proceedings would be required to consider any other court proceedings or orders involving the parties before making family law parenting, contact or support orders.
Access to justice is a critical aspect of the new amendments. Encouraging parties to resolve their family law disputes through alternative dispute resolution is part of the way in which the amendments aim to reduce the need to resort to court. The plan includes making the family law system more accessible and efficient, through various provincial initiatives including child support administration services and recalculation services. Other amendments aim to reduce the risk of a child living in poverty following divorce, for example, by empowering the government to release income tax information in order to ensure accurate child support is being paid.
Stay tuned for further information on this topic, once the Bill is available in its entirety.