Canada’s Divorce Act set for its first major makeover in 20 years

Notable changes are expected to be coming to the federal Divorce Act in the form of Bill C-78, which was introduced in the House of Commons on May 22.

Bill C-78 marks the first substantial reform to the Divorce Act in more than 20 years. In this column, we touch on a few highlights.

1) Modernizing the language regarding custody and access: the amendments eliminate the word “custody,” instead giving courts the power to make orders regarding “parenting time or decision-making responsibility.” This change brings the language of the act in line with the British Columbia Family Law Act and is thought to shift the focus away from parenting rights toward parenting responsibilities. A person who is not a parent of a child can apply to court to have “contact” with the child.

2) Making the best interests of the child front and centre: while the current act directs courts to consider the best interests of the child when making a custody (soon-to-be “parenting”) order, the amendments go further to state that the best interests of the child are the only consideration and set out a non-exhaustive list of factors to consider in determining best interests.

The list includes:

•the child’s relationship with each parent;

•the child’s cultural, linguistic, religious and spiritual upbringing, including Indigenous upbringing and heritage;

•the willingness of a parent to communicate and co-operate on matters affecting the child;

•whether family violence is present; and

•primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being.

The amendments also place a duty on parties to a divorce proceeding to protect a child from conflict arising from the proceeding.

3) More safeguards against the impact of family violence: the amendments introduce the concept of “family violence” into the act, as well as safeguards to protect against it.

In addition to “family violence” being listed as a factor relating to the child’s best interests, the amendments add a separate section on how courts should assess the impact of family violence on the child. “Family violence” has a broad definition (as it does in our provincial Family Law Act) and includes sexual, psychological and financial abuse, and failure to provide the necessaries of life.

The amendments also create an exception to the requirement that a person with parenting time or decision-making responsibility for a child must notify any person with access rights before changing residence or relocating. While notice is still generally required, the revisions provide that a court can dispense with the notice requirement, including where there is a risk of family violence.

4) Encouraging out-of-court dispute resolution processes: the amendments place a duty on spouses involved in divorce proceedings to attempt to resolve the matters through a “family dispute resolution process,” which includes negotiation, mediation and collaborative law. In addition, legal advisers now have a duty to encourage their clients to resolve matters through these out-of-court processes, unless it would clearly be inappropriate to do so.

Bill C-78, which contains these amendments and more, can be accessed here: parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading

Emma Ferguson is associate counsel in the wills, estates and trust practice group at Alexander Holburn Beaudin + Lang LLP; Catherine Provan is a law student at the firm.