April 2021 – Changes to the Divorce Act

During these difficult times, many of us are facing family struggles. According to a recent CBC article, divorce and separation inquiries have increased by 20% compared to the previous period. 
If you are experiencing divorce or separation, it is important to note that new changes to family laws may affect you. Changes to the Divorce Act came into effect on March 1, 2021. Also, changes to federal enforcement laws will come into force at different times over the next two years. 

It is important to note that family law in Canada is an area of shared jurisdiction between federal and provincial governments. The Divorce Act specifically applies to married couples who are divorcing. The provincial legislation applies to married couples who are separated but not divorced or unmarried or common-law couples. 

Federal family laws have not been substantially updated in more than 20 years. The legislation has four key objectives, which include promoting the best interests of the child, addressing family violence, helping to reduce child poverty, and finally, making Canada’s family justice system more accessible and efficient. 

Best Interests of the Child 

In family law, a child’s best interests should be a top consideration when making family law decisions.  The March amendments set out a list of specific factors that courts must consider when deciding what would be in a child’s best interests in the child’s particular situation, paralleling the criteria already set out under the Family Law Act in Alberta. Along with the main considerations of the child’s physical, emotional, and psychological safety and wellbeing, other factors include the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life, the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and the child’s views and preferences.

Each child’s situation, each child’s circumstances, are truly unique, and as such, the parenting arrangement that works for one family may not work for another. Courts have to be careful in considering what the best interests of the child are for each case before them. 

Addressing Family Violence

Before the changes, the Divorce Act did not address measures for dealing with family violence even though this was often a serious impact on children’s upbringing. Now, the legislation specifically defines family conduct as something that is violent, threatening, a pattern of coercive and controlling behavior, causes a family member to fear for their safety, and directly or indirectly exposes a child to such conduct. Courts now have to take family violence into account when making parenting or support orders. Part of this consideration is assessing whether there are currently ongoing proceedings against any of the parties, that may affect the drafting of such orders.  

Reducing Poverty 

Post-separation or divorce or the parties, the party that materially relied on the other party with respect to financial support, maybe, along with their child, be at a much greater risk of living in poverty. The updated legislation includes measures to provide more tools to establish and enforce child support. The federal government will be able to release tax information to certain groups, such as judges of the Court, or various maintenance enforcement programs, in order for better-expedited verification of the income level of each party. 

Making the Family Justice System More Accessible and Efficient

There are also mechanisms within the legislation that should burden the need for families to go to Court and incur significant legal expenses. A number of new measures will help streamline the administrative family process. Particularly, provincial child supports administrative services will be able to perform some tasks currently left to the Courts, making it faster, less costly, and less adversarial to deal with support recalculations. In turn, the provincial recalculation services will be allowed to recalculate child support any time when required, rather than a fixed schedule. 

The hope is that with these additional changes, the gap between provincial and federal legislation will lessen and families will have more options for a path forward while keeping in mind the best interest of their children. 

Steve DimicIf you have any additional inquiries regarding any of the topics or if you have ideas for future topics, please feel free to email me at [email protected]

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