Last Updated on January 26, 2021 by Julian Yang

Changes to Canada’s Divorce Act with Bill C-78

In the last few years, introduction of Bill C-78 which promised reforms to Canada’s aging Divorce Act has created a lot of chatter.

TLDR: changes to terminology and legislative wording focuses on a child-first approach with the intention to promote collaborative resolution to all issues relating to children post separation.

A link to an overview of the legislative changes can be found here:

https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/c78/03.html

A link to the Divorce Act can be found here:

Divorce Act (justice.gc.ca)

These changes primarily replace the words “Custody” and “Access” to the concepts of “parenting time” and “parental decision-making”. This may not seem like a significant change from the outside, however, the intention is to change the negative connotations often attributed to custody/access terminology. The move away from a sense of being a winner or loser is intended to promote collaboration. The terminology of custody/access also implies ownership, which is an archaic way of viewing the relationship between families, especially when it comes to children.

In practice, family lawyers and judges have already been applying these concepts in cases involving disputes over children. The benefit is mainly to self-represented parties and the strengthening of judicial power to control the narrative in cases where there is an unreasonable party and/or overzealous counsel.

As a lawyer who prefers focusing on resolution rather than aggression, I welcome these changes with open arms and optimism. If anything, this provides us with additional tools in defusing hostile situations and shift the focus back on what matters the most – the best interest of the child.

Speaking of the best interest of the child, Bill C-78 introduces a non-exhaustive list of factors that are to be considered:

(3) Factors to be considered — In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
4. the history of care of the child;
5. the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained;
6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. any plans for the child’s care;
8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
10. any family violence and its impact on, among other things,
11. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
12. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
13. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and wellbeing of the child.

Each of these factors warrant their own article. In this post, I will just say that it is good to see the inclusion of specific items such as family violence (not just physical violence, but psychological and financial as well) and the views of the child. These are highly contentious areas in modern cases involving children, and I am optimistic that inclusion of these factors will help guide not just litigation, but also parties in the negotiation phase.

Another area of frequent contention is in relocation. One party wants to move to a different city but the other party refuses. Who has the final say? Bill C-78 establishes a detailed considerations and procedure to follow. A parent will need to provide notice, and the other parent has an opportunity to serve an objection. Relocation without notice is reserved for cases where there is risk for family violence, though this would need to be established through an ex parte application.

Due to the COVID-19 pandemic, the implementation of the changes has been pushed back. However, family law practitioners and judges have already started using the new concepts and terminology and continue to embrace the positive movement these changes were aimed at promoting. Moving forward, I am interested to see how these theoretical improvements will translate into actual practice, especially in cases that will strain the limitations.

DISCLAIMER: The foregoing is not legal advice and should not be considered as legal advice. The law is nuanced, and every situation is different. It is imperative that you seek professional advice and representation for your specific matter. Should you wish to retain our services, we are happy to sit down with you for a consultation and help you create an action plan.