As of March 1, 2021, several changes to the Divorce Act were effected by Parliament, many of which may be important to those involved in family law proceedings.
An overview of some of the most noteworthy changes to the Divorce Act are:
The recent changes include changing the terms used for a number of key concepts in family law. Terms that have been commonplace in family law proceedings for decades are now being replaced with new terms. For example:
Before March 1, 2021
After March 1, 2021
Decision-making and parenting time
These changes do not have any effect on previous court orders that utilize the old terms, nor is this change grounds for revisiting previous orders that use the old terms.
In addition to the above changes in language, Section 2(1) of the Divorce Act will also include a new definition, that being the definition of “family violence”, which will come into effect March 1, 2021.
The new definition is set out here:
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 own 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 necessaries 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)
This definition makes it clear that family violence does not have to be a criminal offence or be established “beyond a reasonable doubt” to be recognized under the Divorce Act. The courts will be free to establish a presence of family violence using this new definition under the Divorce Act.
It is important to note that the definition of family violence here is not exhaustive, and that there may be other behaviours that a court would consider as part of family violence relating to parenting.
Best Interest of the Child
The “Best Interest of the Child” is the Court’s only focus when making parenting orders. Effective March 1, 2021, the factors in determining a child’s best interest include:
- the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
- each spouse’s willingness to encourage the child’s relationship with the other spouse;
- the child’s views and preferences;
- the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
- the ability of each spouse to care for the child;
- the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
- the presence of family violence.
Previously, the Divorce Act included the “maximum contact” principle, which stated that the court must do what it can to ensure the child has as much contact as possible with each parent. This principle has been replaced with:
Parenting Time Consistent with Best Interests of Child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Here, the changes reflect a shift towards focusing on the best interests of a child, and stepping away from the “maximum contact” principle.
These are just a few of the many changes that have taken place to the Divorce Act this year. Many more changes were made, and further reading can be found at this link.
Courts and lawyers have been working on implementing these changes over the past several months, and have been doing an excellent job of adapting to the new terms and definitions. However, it is not terribly uncommon to see a lawyer accidentally say “custody” when they mean “decision-making”, or “access” when they mean “parenting-time”. While everyone is doing their best to adapt to the new changes, one fact remains constant – old habits die hard.