How Canada’s New Divorce Act Impacts Parents and Children

Part 1 of a 4-part series
As of March 2021, Canada’s new Divorce Act came into effect, introducing substantive amendments since its enactment in 1985. For the first time, the Act places the “best interests of the child” at the centre of its legal principles. The Supreme Court of Canada defines this as a child’s “positive right to the best possible arrangements in the circumstances”.

In addition, the Divorce Act shines a light on family violence, whose definition now exists within the law, and stipulates that it must be considered by courts when weighing up decisions related to a child’s wellbeing. When deciding a child’s best interest, the court must give priority to the child’s physical, emotional, and psychological safety, security and well-being.

While the Divorce Act’s latest amendments also outline new guidelines for dealing with relocation and custody, let’s begin by examining its key provisions and how it affects someone getting a divorce in Calgary.

Note: Canada’s new Divorce Act was initially scheduled to go into effect in June 2020, but implementation was delayed due to the pandemic.

Why Was Canada’s Divorce Act Amended?

There have been growing concerns about domestic and spousal violence in Canada, which previously have not always been addressed adequately by law. According to the CBC, “Between 2007 and 2011, the risk of a woman being killed by her former spouse was nearly six times higher than a woman’s risk of being killed by a spouse with whom she was living.” It’s a commonly held belief that in divorce cases there is a systemic trend where spouses have deliberately downplayed issues related to domestic violence.

Calgary family law lawyer Charles Fair of Fair Legal said:
“The amendments are not perfect, and we’ll be discussing in future blogs how some cases will have to be handled differently as a result of the changes. For example, there is a greater risk that a family law litigant can engage the criminal law process in order to get an unfair advantage in a parenting dispute.”

In some cases, a judge may not be privy to an abusive parent and to succeed in court, spouses are told to facilitate their child’s relationship with the other parent, no matter how detrimental to their or their child’s wellbeing. In the past, the focus was placed on being amicable so as not to lose credibility, even in the face of potential future abuse.

In addition, what used to be called a “custody order” has been replaced with the term “parenting order” to avoid bitter custody battles. Traditional custody battles have been fought with a win-lose mentality. The new amendments distinguish between “parenting time” and “decision-making responsibility”. They aim to develop better parenting arrangements focused on power-sharing, with as little court intervention as possible.

Who Does the Divorce Act Affect?

Canada’s family law is a shared jurisdiction between the federal and provincial-territorial governments. The divorce law currently applies to married couples who are divorcing, while provincial or territorial legislation applies to unmarried or common-law couples as well as married couples who are separated but not divorcing.

The Divorce Act’s Key Provisions

Family Violence
Canada’s New Divorce Act defines family violence as any conduct that is threatening, coercive or controlling that causes a family member to fear for their safety or the safety of another individual. This may include acts of mental, emotional and/or financial abuse.

Its definition extends to include a child’s exposure to such acts. Most crucially, it specifies that the violent person’s behaviour doesn’t need to rise to the level of a criminal offence in order to be deemed family violence under the divorce act. What this means for a person divorcing in Calgary is that past conduct may impact a judge’s decision on a person’s ability to parent.

Child Relocation
Canada’s New Divorce Act includes a revised framework outlining new steps to follow when a parent plans to move and how the court will decide whether a child can or cannot relocate. Prior to 1 March 2021, relocation decisions were primarily based on the Gordan decision, which placed little regard on the changes to the social, economic, and cultural facets that a child may experience if moved.

The new amendments incorporate a non-exhaustive list of factors to help the court determine whether or not the proposed location is in the best interests of the child. They also permit a court to take a more holistic approach and weigh up how the move may impact the child, as well as the validity of the parent’s rationale behind the move.

If the relocation is going to have a “significant impact” then the parent wanting to move their child/children has to by law provide a minimum of 60 days written notice and can be expected to wait up to 30 days for a response. Additional changes also include new standards on the “burden of proof” in the mobility cases. In cases where parents have a shared parenting agreement, the parent proposing relocation will be required to prove how the proposed move is in the child’s best interests.

The welcomed amendments in Canada’s New Divorce Act aim to make rulings around children and their family lives more holistic when rendering decisions during divorce settlements. The above are key changes that affect all persons living in Canada, including Calgary. It’s hoped these changes will provide an increased sense of justice and protection in one of the toughest areas of family law.

Calgary Family Lawyer Charles Fair

Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Family Law for over 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.