Changes to the Federal Divorce Act

◂ BLOG

Amendments to the federal Divorce Act came into force on March 1, 2021. The amendments are designed to address family violence, promote the best interests of children, and make the family justice system more efficient.

Below we’ve highlighted the newest provisions pertaining to the Divorce Act.

Family Violence

The Act defines family violence as any conduct that is violent, threatening, forms a pattern of coercive and controlling behaviour, or causes another family member to fear for their safety or that of another’s. This definition includes children’s direct or indirect exposure to such conduct, harassment, failure to provide the necessities of life, financial abuse, and harm to animals or property. 

Considered a landmark revision to federal legislation, the family violence provisions come into play when the courts assess the best interests of a child in making parenting or contact orders. The courts only consider what is in a child’s best interests when granting a parenting or contact order relating to the child and now, the impacts of family violence is an important consideration in the court’s assessment. 

Courts may also use their discretion to waive or modify the requirement for notifying other parties on a change of residence or relocation of a child where there is a risk of family violence. 

Change of Residence and Relocation 

Changes in residence or relocation of a child no longer require direct application to the court for an intensive assessment of mobility factors. Instead, parents who intend to change a child’s residence or relocate must notify any other person that has parenting time, decision-making responsibilities, or court-ordered contact with the child of their intention. Notification of relocation must occur at least 60 days prior to the proposed relocation. 

Relocation is distinct from a change of residence as it requires a change of residence that has a significant impact on the child’s relationship with those persons who have parenting time, decision-making responsibilities, or court-ordered contact with the child. Such a person can object to the relocation within 30 days of receiving notice or apply to the courts. The relocation of the child is allowed if no one objects to the relocation, there is no court order prohibiting the relocation, and the courts authorize it. In deciding whether to allow the relocation, the courts will consider additional factors relating to the best interests of the child in question but will no longer consider whether the parent proposing the relocation still intends to relocate without the child if the child’s relocation is denied. 

These changes are intended to streamline the courts’ processes as the previous regime involved lengthy and costly trials on mobility with high burdens for the relocating party to meet. 

Duties to Parties and Lawyers

The amendments to the Act also impose new positive duties on parties to a proceeding in an attempt to encourage divorcing couples to settle matters outside the courts. These duties include exercising parenting rights in a manner consistent with the best interests of the child of the marriage, protecting children from conflicts arising from a divorce proceeding, and attempting to resolve issues through alternative dispute resolution processes, such as mediation, arbitration, or divorce contracts. Parties are also obligated to produce complete, up-to-date financial information required by the Act and comply with court orders for as long as they are in effect. 

The Act also imposes new duties on lawyers and legal advisors to parties of a proceeding, such as discussing the possibility of reconciliation between spouses unless it is clearly inappropriate to do so and to encourage parties to settle matters outside of court through alternative dispute resolution processes.  

Divorcing spouses and their lawyers must now certify that they have complied with the above-mentioned duties when commencing proceedings. 

Changes in Terminology 

The federal government has also changed the terminology used in the Act to reflect language already being used by several provincial jurisdictions and reduce confusion. 

Having “custody” of a child is now referred to as having “decision-making responsibilities”. These responsibilities involve making significant decisions about a child’s well-being, including the child’s health, education, culture, residence, and extra-curricular activities. “Access” to children now refers to “parenting time”. Decision-making responsibilities and parenting time are subject to parenting orders from the court. Access by non-spouses, such as grandparents, is now referred to as “contact” and is subject to contact orders. 

These changes come at a much-needed time where family lawyers across Canada are seeing a marked rise in separation and divorce proceedings during the COVID-19 pandemic. 

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