On March 1, 2021, Canada implemented new provisions in its Divorce Act. The Divorce Act applies to married spouses only (not common-law spouses) and is the federal law that governs families. According to the Government of Canada Justice website, federal family laws have remained essentially unchanged for over 20 years. The amendments have been a long time coming and target the following:

  • The promotion of the best interests of children
  • Family violence
  • The reduction of child poverty
  • Accessibility to, and efficiency of, the family justice system in Canada

Best interests of children

To promote the best interests of the children, the Act outlines specific factors the court must consider when making decisions about parenting arrangements. The court was already required to consider the child’s physical, emotional, and psychological safety and well-being. It must now consider the following additions:

  • The nature and strength of the child’s relationship with parents, grandparents, and other important people in their life
  • The child’s heritage and upbringing, including linguistic, cultural and spiritual heritage, and upbringing including Indigenous heritage
  • The child’s views and preferences

In addition to the best interests considerations, the wording around parenting arrangements has significantly changed. Previous wording included custody, primary care and control, and access. This wording often pitted spouses against each other, reinforcing a “winner” and “loser” mindset around parenting. The new wording refers to parenting orders instead of custody. Parenting time and decision-making responsibility now describe the details of the parenting arrangement based on the best interests of the child.

There is also a new requirement for parents (or another person who has responsibility for the child) to give notice of a plan to move residences to the other parties responsible for the child. The notice ensures that everyone responsible for the child is informed about the potential move and assists the court in deciding whether a move is in the child’s best interests.

Family violence

Of great importance, the Divorce Act now defines family violence and requires the court to take its presence into account when making parenting orders. Family court judges must now consider other proceedings and orders (e.g., criminal convictions, protection orders)  to ensure there is no conflict with orders made in other courts. This change to the Divorce Act is particularly welcome because it previously did not deal with family violence at all despite its prevalence and profound effect on children.

Finally, the changes also seek to address and reduce child poverty following family separation by casting a wider net as to the ability of a recipient to collect on support owing to them and to encourage out-of-court alternative dispute resolution measures.

These changes modernize the Divorce Act, move away from winner and loser wording, and will help protect children and ensure the courts focus on children’s safety and best interests.

kelly riediger image smallBy Kelly Riediger

If you have any questions about the changes to Canada’s Divorce Act, please contact me at (204) 992-3249 or kriediger@evansfamilylaw.ca.