In July 2019, Bill C-78, otherwise knows as An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act, received royal assent, allowing for amendments to Canada’s Divorce Act that will have a significant impact on a variety of family law issues starting in July of this year.
In particular, the changes will impact family law in the following areas:
- Parent & child mobility
- A stronger focus on the bests interests of the child
- Using more child-focused language in family matters
- Incorporating the potential for family violence into related family matters
Below, we will take a closer look at each of the factors listed above in order to provide an overview of the coming changes and how they will affect family decisions going forward.
Under the current laws, parents seeking to relocate must obtain approval from the court if the other parent objects to the move. Under the changes, there will be a stronger onus on the relocating parent to provide sufficient notice to the other parent. The relocating parent will be required to provide written notice to the other parent at least 60 days in advance of the proposed move, even if the move is local. The notice must include the following information:
- the proposed date of the move
- the parent’s new contact information
- a proposal for a new parenting arrangement, if necessary, including any changes to parenting time and decision-making in light of the relocation
Once the notice has been provided, the other parent may object, either by providing a standard objection in writing, in which case the other parent will be forced to either agree not to move, or to bring a mobility application in court. The objecting parent may also choose to bring an application, allowing the court to decide on the issue of mobility.
New Considerations in the Best Interests of the Child
In order to ensure that each child and family is treated respectfully, courts will bring new factors into consideration when examining the best interests of a child. Previously the focus has been on factors such as a child’s physical and emotional wellbeing, which will continue to be a focus. However, courts will also take the following into consideration when deciding on issues such as custody and access:
- the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life,
- the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
- the child’s views and preferences.
This is an attempt to eliminate a “one size fits all” approach when it comes to parenting, guardianship and mobility matters, but also to better address the needs of Indigenous children in family decisions.
Family Violence Considerations
Before these amendments, the Divorce Act did not directly address the issue of family violence in any direct way, even though this issue can greatly impact the safety and wellbeing of both adults and children.
Going forward, courts will have to consider any instances of family violence when making orders around parenting, custody or access. Further, courts will be required to consider any criminal proceedings that may conflict with certain family orders. For example, access should not be granted to a parent who is subject to a protection order. For the purposes of these amendments, family violence is defined as any of the following conduct:
- a pattern of coercive and controlling behaviour
- causes a family member to fear for their safety
- directly or indirectly exposes a child to such conduct
In an effort to move away from the concept of ‘winners’ and ‘losers’ when it comes to family matters involving children, courts will be moving away from wording such as “custody” and “access”. Instead, there will be a focus on “parenting arrangments” and “decision-making abilities”. This is being done in the hope of shifting the focus to parenting the child, and the associated responsibilities.
It remains to be seen what impact these changes will have when they come into effect later this year, but a greater focus on the safety and well-being of children is a step in the right direction. Anyone who would like further information on these changes and how they may impact an upcoming family matter is encouraged to contact an experienced family lawyer who will review the changes in light of your particular circumstances.
At Baker & Company, our lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests and the best interests of your children, if applicable. Call us at 416-777-0100 or contact us online for a consultation.