Existing Divorce Court Orders: What Is The Impact of Canada’s New Divorce Act?

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Part 2 of a 4 part series on Canada's new divorce act

The legislation of Canada’s new Divorce Act actualizes a much-needed paradigm shift in family law which promotes the ‘best interests of the child’, addresses family violence, reduces poverty and makes the justice system more efficient and accessible. The federal government makes divorce laws, which means the new Divorce Act is applicable across the whole of Canada. But what if you already have existing divorce court orders? How does Canada’s new Divorce Act impact someone who already has an order in place? 

Canada’s new Divorce Act sets out rules for dealing with “corollary relief” i.e. issues related to divorce. This includes:

  • child support
  • spousal support
  • contact order
  • giving notice when moving
  • decision-making responsibility
  • parenting of children

It’s important to note that while provinces do not make the laws about divorce, they do have Rules of Court setting the process for getting a divorce.

If you’re in the middle of a family court case, or already have a family court date involving custody, access and/or parenting issues, you probably want to know how the Divorce Act, affected as of March 1, 2021, might impact you.

Below are common FAQs dealing with existing divorce court orders that were in place before the new Divorce Act came into effect.

FAQs: How Canada's New Divorce Act Impact Someone With Existing Divorce Court Orders

Do you have to change your existing Divorce Act custody and access order and get a new one after March 2021?

No. Any agreement, award or order about custody and access made before March 1, 2021, is still valid, and still binding on the parties to those older orders, awards and agreements. Some legal terms have changed, but this does not require you to go to court to update your existing agreement or order.

However, if you choose to come back because you want to make changes to existing parenting arrangements in the family or a motion is filed to change your final court order, then the changed law will apply to your case if your order was made after July 1, 2020.

Remember, changes in the law are seldom a reason to change in an existing order.

To make a change, parties have to show there has been a significant change in their life or that of a child. This is called a “change in circumstances” in the Act. Note that the changes to the Divorce Act do not constitute a “change in circumstances”.

Does the updated language under Canada’s New Divorce Act impact an existing access and custody order?

To modernize the language of the law, as of March 1, 2021, the terms “custody” and “access” are no longer used in the Divorce Act. These deliberate changes in custodial language and terminology aim to make the act more ‘child centred’ in the sense that it focuses on a child’s agency, rather than adversarial notions of parents ‘owning’ their offspring. 

For example, rather than the terms “custody and access,” the act uses parenting time. A former spouse with “custody” under an older agreement or order will be granted decision-making responsibility and parenting time. A former spouse who has “access” but not custody will have parenting-time, meaning they are prohibited by law from making decisions about their child other than daily decisions when the child is with them.  Someone who has “access” but isn’t a former spouse will have contact with the child. Canada’s new Divorce Act does not change older agreements or orders that talk about custody and access, it has merely updated the language.

What happens if you applied for a new court order before the Divorce Act came into effect?

If the new law came into effect after you filed a court application but before you received your order, Canada’s new Divorce Act applies.

  1. If a matter was disposed of before July 1, 2020, the current / "old” parenting provisions of the Divorce Act apply.
  2. If the matter was not disposed of before July 1, 2020, the “new” provisions of the  Divorce Act apply, even for cases that already started pre-July 1, 2020.
  3. If you applied to deal with a matter as of July 1, 2020, or later, the “new” Divorce Act applies.

Do new duties apply to old court orders?

Under the new act, individuals with parenting time, contact and decision-making time are always expected to exercise their entitlements honouring the ‘best interest of their child/ children’.

Additionally, lawyers are required to encourage spouses to settle disputes outside of courts. Furthermore, courts are required to consider criminality, history of violence, civil protection orders, and child protection proceedings when reviewing court order changes to ensure that caretakers do not have a history of violence, which could negatively impact a child.

SUMMARY 

While Canada’s new Divorce Act does not significantly impact someone who already has an existing divorce court order in place, it will impact those who are seeking to make changes to existing orders. New considerations, which are child-centric, will carefully examine how proposed changes could influence a child’s wellbeing, whether it be a small adjustment to parenting time or something bigger such as a relocation.

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Do You Have Questions About Canada's New Divorce Act?
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Fair Legal is committed to helping you face your family law legal matters head-on with honest, straightforward advice and experienced legal representation.  Call us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our team.