Many changes were made to the Divorce Act on March 1, 2021. The new rules apply to anyone getting a divorce or considering divorce, including those whose case started before the changes came into effect. The Divorce Act applies to people who are legally married or used to be married. Alberta’s Family Law Act will apply if you and your partner have never been married.
Under the new Divorce Act, couples are encouraged to try to resolve their disputes out of court through mediation and arbitration services with a Calgary divorce lawyer. To see a complete list of changes to the Divorce Act, visit the federal Department of Justice’s website. In this article, we highlight a few of these changes.
The terms “custody” and “access” are no longer used in the new Divorce Act. Instead:
- Decision-making responsibility has replaced “custody”. This gives the spouse with the decision-making responsibility the right to get information about their children’s health, education, and well-being as well as other important factors such as language and religion. Decision-making responsibilities can be given to one spouse or shared between both parents.
- Parenting time has replaced “access” and provides the parent with parenting time the right to make day-to-day decisions about their child. During this time, they also have the right to get information about their children’s health, education, and well-being.
- Contact refers to time with a child involving someone who isn’t a spouse, such as a grandparent. A contact is not granted the right to make day-to-day decisions about the child or obtain information about the children’s health, education, and well-being.
Best interests of the child
As of March 1, 2021, the following factors can impact the court’s and the spouses’ decisions regarding what’s in the child’s best interests:
- the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
- a court action or order relevant to the child’s safety and well-being
- family violence
The Court prioritizes the child’s security, well-being, and physical, emotional, and psychological safety when making decisions.
Relocation after separation
Relocation refers to a person with parenting time and decision-making responsibility wanting to move away with or without their child. As of March 1, 2021, the Divorce Act states that when someone plans to relocate:
- They have to provide 60 days’ written notice.
- The notice must be given to anyone with parenting time, decision-making responsibility, or contact.
- A person with parenting time or decision-making responsibility has 30 days to object to the relocation.
- The objection must be a written notice or a court application.
Someone with contact cannot object to a person’s plan to relocate. The only person who can object is one who is granted parenting time or decision-making responsibility. If there is family violence, notice may not be needed.
Changes to the Divorce Act include a legal definition of family violence, which is “physical abuse, sexual abuse, psychological abuse, emotional abuse, financial abuse, harassment, and threats of harm to persons, pets, and property.” Under the new Divorce Act, the court must consider any existing or upcoming civil protection, child protection, or criminal court actions when family violence is an issue.
When deciding on the best interest of a child, the court will have to consider whether family violence is an issue. If family violence is a factor, some of the factors that the court will examine include:
- How often the family violence is
- How serious the family violence is
- Whether coercive and controlling behaviour is present
- Whether the violent person has taken steps to prevent violence and improve their parenting
Family law is complex and made further complicated, given that all family situations are unique. If you’re going through a separation, you need the help of an experienced Calgary divorce lawyer who will guide you through the process and give advice that makes sense for you and your family.