Coming Soon: Child-Focused Changes To The Divorce Act

In Canada, the federal Divorce Actis the governing legislation that addresses the mechanics of divorce, and also sets out the rights and obligations that arise from getting one. But that legislation, which was first enacted in 1978, has not had a significant overhaul for more than 30 years. All that is now scheduled to change.

Upcoming Amendments Under Bill C-78

The government has introduced Bill C-78 (formally titled “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”) which modernizes the Divorce Act and related statutes, to bring them more in line with prevailing social values around the protection and best interests of children. Bill C-78 passed its third reading on February 6, 2019. It is expected to come into force in the coming year, by order of the Governor-in-Council.

One of the key purposes of the Bill is to make fundamental changes to how family law issues and disputes will be dealt with, starting with the introduction of new simplified processes. Several of these pertain to family support, and prioritize in particular the enforcement of the financial support obligations imposed on parents. The amendments also encourage the use of family dispute resolution methods, such as mediation and collaborative law.

Child-Focused Language

The most noteworthy change to the Divorce Act under Bill C-78 is the introduction of new child-focused language throughout. In place of outdated terms like “custody” and “access” – which are polarizing because of their adversarial, winner/loser subtext – the Bill recasts the legislation using terms like “parenting time” and “decision-making responsibility”. These newer terms entrench the idea that the primary focus is always the needs of the children, and the secondary one is on the parents’ corresponding responsibility to meet those needs.

“Best Interests of the Child”, Defined

Also embedded in this concept of child-focused wording is the notion that the “best interests” of any children of the marriage are paramount, even when a court must make orders as part of their parents’ divorce. For example, when making a parenting order or contact order, the court must now take into consideration only the best interests of the child; this expressly includes considering his or her physical, emotional and psychological safety, security, and well-being.

The concept of the “best interests of the child” is also clearer:  Bill C-78 specifies a long list of more than a dozen additional factors that must be considered by a court whenever it is called upon to make an order that takes the child’s overall circumstances into account. These include:

• The child’s needs in light of his or her age and stage of development;
• The child’s relationship with each parent, sibling, grandparents, and others who play an important role;
• Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• The child’s cultural, linguistic, religious upbringing and heritage; and
• Each parent’s willingness and ability to care for the child and meet his or her needs.

In this context a court is also expressly directed to take into account the child’s own views and preferences (if they can be ascertained). Their weight and relevance to the court’s deliberations will be influenced by the child’s age and maturity. This intensely child-centered mandate for judicial decision-making is a sharp – and much-welcomed – departure from the prior approach dictated by the Divorce Act.