Changes to the Canadian Divorce Act, Effective March 2021

a single mother with child custody

Last year, it was announced by Parliament that there would be significant changes to the Divorce Act. However, due to the COVID-19 pandemic, many of the scheduled changes were delayed until March 1, 2021. Every change that has been made in the Divorce Act has been very carefully explained by Canada’s Department of Justice. However, we have compiled a summary of the most significant changes made and how they may impact you below.

Changes to Language – Parenting and child custody 

As of March 1, 2021, the use of the terms “custody” and access in the Divorce act have been removed. As a replacement to these terms, they are now using “decision-making responsibility” for a child as well as “parenting time.”

In addition, they have added the term “contact order” as a way to describe when a third party, who is not a spouse (for example, a grandparent) wishes to see a child.

Any earlier court orders that referred to the older terms do not have to be changed at court again because of the language change. The language changes to the Divorce Act are not a reason to change existing child custody or child access orders. Any orders after March 1, 2021, will need to use the new language used in the Divorce Act.

First Priority – The Best Interest of the Child

When reviewing a parenting order, the best interest of the child will be the only consideration the court will now take into account. Under the new amendment: “anyone who has parenting time, decision-making responsibility or contact must fulfill these duties in the best interests of the child”. The factors that determine this includes:

  • The child’s relationship with each parent, sibling, and other important people in the child’s life.
  • The willingness of each spouse to encourage the child’s relationship with the other spouse.
  • The child’s preferences.
  • The child’s upbringing.
  • The ability of each spouse to take care of the child.
  • The presence of any criminal or civil court actions that are relevant to the child’s wellbeing.
  • The presence of family violence

When considering a parenting order, a court’s primary consideration must be the physical, emotional, and psychological well-being of the child.

When determining the amount of parenting time each spouse will receive, the court will give effect to the principle that a child should have as much time with each parent as possible. As this is consistent with the best interest of the child.

New Definition – Family Violence

Under section 2(1) of the Divorce Act, a definition of the term “family violence” has been added. The new definition is as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person.

(b) sexual abuse.

(c) threats to kill or cause bodily harm to any person.

(d) harassment, including stalking.

(e) the failure to provide the necessities of life.

(f) psychological abuse.

(g) financial abuse.

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property; (violence familiale)

The reason why this change is so significant is that it explains that family violence does not have to be a criminal offence. Nor does it have to be established beyond a reasonable doubt for it to be considered family violence.

Change in Place of Residence & Relocation

The Divorce Act now includes a new framework to address any changes in residence. This includes a written notice of the relocation exchanged between all parties involved and a “best interest” criteria for the court to evaluate. A “burden of proof” may be required depending on your situation.

Now as a part of section 16.8 of the Divorce Act: “A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.”

The notice must include the new address and contact information (such as a telephone number) in writing. The only exception to this notice is where there is a risk of family violence and a court order recognizes that the notice of a change to a child’s residence is waived.

The term “relocation” has also been added as a new definition. It is described as a change in the residence of a child or person who has parenting time or decision-making responsibility that is likely to have an impact on the child’s relationship with a person who has or is requesting parenting time or decision-making responsibility.

The relocation of a parent or child must be informed to all parties at least 60 days before the proposed move. Similar to a change in residence, there is an exception for situations involving family violence. Once a notice for relocation is made, all individuals that may be affected have 30 days to object. The objection must include:

(a) a statement that the person objects to the proposed relocation.

(b) the reasons for the objection.

(c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility, or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and

(d) any other information prescribed by the regulations.

If after 30 days there is no objection and the court has given an order allowing the relocation, the moving party along with the child is allowed to relocate.

New Responsibilities for Parents 

Throughout sections 7.1 – 7.5 of the Divorce Act, it enforces the following duties on parents:

  1. Exercising and understanding their responsibilities as a parent (whether it is during parenting time or decision-making for the child) in the “best interests of the child.
  2. Protecting, to the best of their ability, children from conflict as a result of a divorce proceeding
  3. Where appropriate, trying to resolve matters through family dispute resolution (i.e., negotiation, mediation or collaborative practice).  In situations where there is family violence or significant “inequality of bargaining power,” these family dispute resolution processes may be inappropriate.
  4. Providing complete, accurate, and up-to-date information as required, including:
    1. Income and asset/debt documentation
    2. Information about other court orders and proceedings e.g., criminal proceedings
  5. Complying with court orders until they are no longer in effect.

Resolving Matters Outside Family Court

The Divorce Act also now encourages people to resolve their disputes outside of the court to the best of their abilities. This can involve any alternative dispute resolution process such as negotiation, mediation, collaborative law, and so on.

Luckily at Galbraith Family Law, we already encourage our clients to try to resolve their family law matters outside of the courtroom. Why? Because going to court usually ends up costing you more time, money, and emotional energy. In some cases, when our client’s rights are threatened, we must go to family court to protect our clients. If you have a parenting time or parenting order concern previously known as a custody arrangement or order, work with one of our professional family lawyers today. We help our clients eliminate as much conflict from their situation as possible while finding them the best resolution to their issues. If we can resolve your case without using the court system, we do it. If the court is needed, we will be strong advocates for you and your family. We always keep the best interest of your children in mind too!

Book a consultation today by calling one of our five locations across Ontario. For our Toronto offices call 647-370-8965, for our Newmarket office call 289-210-4692 or you can reach us at our Barrie office at 705-230-2734. We’re here to help you resolve your family law issues with the heart.

Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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