Canada’s current Divorce Act, 1985, came into force in 1986 to replace the Divorce Act of 1968. To put that into context, in 1986:
- Prime Minister Brian Mulroney was in his first term of office (elected in 1984).
- Don Getty was Premier of Alberta.
- Popular toys were G.I. Joes, Cabbage Patch Kids, and Pound Puppies.
- Top Gun; Crocodile Dundee; and Ferris Bueller’s Day Off were box office hits.
- The Chernobyl nuclear power plant exploded.
- Love You Forever by Robert Munsch was published.
- AND the cover of the board game Game of Life looked like this:
Since then, the Divorce Act, of 1985, has had some amendments. For example, in 2005, when the Civil Marriage Act made same-sex marriage legal in Canada, the Divorce Act correspondingly changed to redefine its definition of spouse.
Still, the 1985/86 legislation should feel really old – because it really is!
The Current Landscape
Bill C-78 is a Bill that introduces further amendments to the Divorce Act. It is expected to come into force on March 1, 2021, having been delayed by the Covid-19 pandemic.
Here are some of the key changes to expect with the amendments:
Change One: There Is an Update in the Terminology.
The revised version will adopt the language “parenting time” instead of “access” and “decision-making responsibility” instead of “custody” to diffuse conflict arising from inflammatory and confusing labels.
Change Two: the New Law Encourages Other Resolution Processes Besides Litigation.
The amendments encourage parties to resolve their disputes by using alternate dispute resolution processes (ADR), such as mediation, co-parenting counseling, collaborative family law processes, arbitration, and judicial dispute resolution. Lawyers have the new duty to inform and encourage their clients to attempt resolution processes and to access family justice services.
Change Three: The Amendments Identify the “Best Interest of the Child” Factors.
When decision-makers adjudicate parenting time and decision-making responsibilities, they consider: “What is the best interest of the child?” This is not new. What is new is the Amendments set out a list of “best interest” factors that judges must consider. The list is not exhaustive, but the intent of the list is to provide more consistency for families. At the top of the list is the child’s safety, security, and well-being. Included in the list is a consideration of the child’s views and of any family violence.
Change Four: Judges Must Consider Family Violence When Making a Parenting Order.
There was no mention of family violence in the 1985 Divorce Act. In the amended version, the legislators gave a thorough definition to family violence. Judges will be obligated to consider the impact of any family violence when making a parenting order. The Amendments set out the factors that must be considered if there has been family violence, such as: the nature, seriousness, and frequency of the family violence; any pattern of coercive and controlling behavior; and the physical, emotional and psychological harm to the child (among other factors).
Change Five: The New Divorce Act Provides a Legal Framework if a Parent Wants to Move.
A parent with any level of parenting time or decision-making responsibility will need to provide 60 days’ written notice to the other parent of an intention to move. Such a notice can be answered by way of formal objection or application to court. The amendments set out a legislative framework for deciding relocation cases, including specific reference to the “best interest of the child” factors. There is also a new requirement to give written notice for a change in residency even if parenting time or decision-making responsibilities would not be impacted.
Provincial legislation, such as Alberta’s Family Law Act, provides a further legal framework for some issues arising from a breakdown in the relationship for both married and unmarried persons.
Please click on the links below to find out more about the changes to the Divorce Act:
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta or Canadian laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.