Long-Overdue Divorce Act Amendments Are Likely On the Horizon
Canadian law has not seen a substantive change to the federal Divorce Act in more than 30 years. But with the mid-2018 introduction of Bill C-78 (which has the unwieldy title of “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”) that long-overdue revision and update is in sight.
Bill C-78, which is expected to be passed into law in 2019, is touted as having a long list of legal substantive and procedural objectives, including:
- Simplifying certain processes, including those related to family support obligations;
- Creating duties for parties and legal advisers to encourage the use of family dispute resolution processes (including negotiation, mediation, and collaborative law);
- Introducing measures to assist the courts in addressing family violence; and
- Establishing a framework for the relocation of a child.
Importantly, the Bill also proposes to give clarity to what is considered the “best interests of the child”, by establishing a non-exhaustive list of criteria. It also strengthens the court’s ability to focus on a child’s best interest when crafting its orders, by mandating that the court consider the child’s own views and preferences in the context of his or her age and maturity (unless those views cannot be ascertained in the circumstances). This is in keeping with existing court rulings on the point, and essentially imports the established principles into a more modern version of the statute.
Bill C-78 also injects two important concepts into the existing legislation:
- That part of fostering the “best interests of the child” requires a court to consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
- That grandparents, or other persons who play an important part in a child’s life, may be eligible to obtain a court order formally entitling them to have contact with the child.
Finally, the Bill updates terminology throughout the existing Divorce Act, so that references to “custody” and “access” are replaced with terminology related to “parenting” and “decision-making responsibility” instead.
In a nutshell, the changes proposed under Bill C-78 are designed to clarify and promote some well-established family law principles (especially those relating to children), and to make the family justice system more accessible and efficient. Further updates on these pending changes will follow in future Blogs, as the Bill gets closer to being passed.
