June 21, 2019 saw Bill C-78, 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 receive Royal Assent. This is the first major change to Canada’s federal family laws related to divorce, separation and parenting since 1986 when the Divorce Act came into force.
Objectives of the Changes to the Divorce Act
Introduced by the Liberal Government in May 2018, Bill C-78 was created to address four key objectives:
- To promote the best interests of the child;
- To address family violence;
- To help reduce child poverty; and
- To make Canada’s family justice system more accessible and efficient by streamlining processes and reducing the need for court intervention.
One of the most widely discussed reforms in Bill C-78 relates to replacing the terms custody, and access with the more modern terms “parental decision-making” and “parenting time”. Currently, custody describes a parent’s ability to make decisions with respect to a child, while access refers to the time spent with a child. In order to promote the Divorce Act’s primary objective, which is the best interests of the child, and to remove any confusion (as custody and access are often mistakenly used in place for one another), Bill C-78 has replaced these terms with words and phrases that focus on parental relationships with children.
“Best Interests of the Child” Test
The Divorce Act currently states that when making an order related to parenting, the court is to consider the “best interests of the child” by reference to the “condition, means, needs and other circumstances of the child”. Bill C-78 clarifies the “best interest of the child” test and establishes a broader scope of factors to be considered by a court, including a child’s age and stage of development, the existing relationship between the child and each parent and extended family, the ability of each parent to support the child’s relationship with the other parent, each parent’s history of care and plan of care for the child, the child’s views and preferences regarding the parenting arrangements to be made, and any family violence, among other considerations.
Family Violence in Relation to Parenting Orders
Studies suggest that the period following separation represents the highest risk of violence in a family, having a profound impact on children as a result. Bill C-78 amends the Divorce Act to require courts to consider the relevance of family violence (conduct that is violent or threatening, a pattern of coercive and controlling behavior or conduct that causes a family member to fear for their safety, including financial violence), when determining what parenting arrangements are in a child’s best interests.
Mobility and Relocation
Relocation, or moving a child to a new jurisdiction after separation and divorce is a highly litigated area of family law, with a great deal of uncertainty. As there was previously no statutory criteria for determining relocation cases, the courts relied upon the test set out by the Supreme Court of Canada in Gordon v. Goertz,  2 SCR 27, which stipulates that the court must be satisfied that the move is in the child’s best interests. Bill C-78 introduces a new legal framework for relocation cases and includes the following: amount of notice to be given of a proposed relocation as well as information required in the notice including how the other parent could exercise their parenting time, additional “best interests” criteria including the reason for the move, and the applicable burden of proof that would apply in certain relocation cases.
What Does This Mean Moving Forward?
The amendments discussed above are only some of the changes Bill C-78 will bring to the Divorce Act. The coming-into-force date of most of the Divorce Act amendments has been set by Order in Council as July 1, 2020, allowing time for the courts, lawyers, and the public to adapt to the changes. The legislative overhaul contemplated by Bill C-78 will undoubtedly have a significant impact on separating spouses and families. Our team of experienced family lawyers would be happy to advise how the new laws will apply to your situation, connect with us today.