March 1st, this past Monday, marks the date that the first major overhaul of the country’s federal Divorce Act in over twenty years took effect. While there have been small changes here and there, the recent amendments are wide-ranging and result in sweeping changes affecting several aspects of family law. The primary focus of the changes is to better consider the best interests of children in all aspects of family law, from mobility and parenting issues to the language we use. Below, we will provide an overview of the notable changes now in effect across the country.

Parenting Language Gets an Update

For years, the legal wording for parenting matters has been ‘custody’ and ‘access’. To better reflect the goals of family law to ensure children have as much time as possible with each parent, these words are being abolished. ‘Custody and access’ implies there is a primary and secondary parent when this is often not the case. Going forward, these terms will be replaced by ‘decision-making ability’ (custody) and ‘parenting time’ (access). If there is a third party who is also entitled to time with the child in question, such as a grandparent, this will be referred to as a ‘contact order’.

Court orders issued after March 1st will now reflect this language when referring to parenting orders.

“Best Interests of the Child” Takes Priority

When deciding on parenting issues, the only factor courts should now consider is the best interests of the child or children in question. The previous s. 16 of the Divorce Act is repealed and replaced with the following:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

There are several sub-factors that courts can examine when determining a child’s best interests, including:

  1. the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
  2. each spouse’s willingness to encourage the child’s relationship with the other spouse;
  3. the child’s views and preferences;
  4. the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
  5. the ability of each spouse to care for the child;
  6. the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
  7. the presence of family violence. [see more about this below]

Based on the factors above, there are still a number of factors for decision-makers to take into consideration, however, it must all relate to how these factors impact a child’s best interests.

New Mobility Requirements

The Divorce Act amendments have also implemented new regulations for mobility applications for parents who share children. Previously, a parent was only required to file an application with the court requesting permission to relocate with their child if the other parent objected to the move. Going forward any parent who plans to move, even locally, must provide written notice to any other person with whom they share parenting and/or decision-making ability with respect to a child. The notice must be given at least two months prior to the proposed move and include the relevant details. In addition, the notice must also include any proposed changes to existing parenting plans, if applicable.

Once the notice is issued, the other parent then will have 30 days to object in writing to the notice. The objecting parent can either submit an objection form to the other parent or file an application in court. If there is a conflict, parents are encouraged to make attempts to reconcile that conflict on their own before seeking resolution in court. If no objection is filed, either to the court or to the other parent, within 30 days of the original notice, the parent proposing the move is free to move pursuant to the terms set out in the notice.

For more details of the new mobility requirements, see our previous blog on the topic here.

Family Violence Becomes an Official Consideration

Until these recent changes, family violence was not considered under any section of the Divorce Act. As demonstrated above, it is now a factor to be considered when a decision-maker is weighing the best interests of a child in any family law decision. Making the change even more significant is the fact that the definition of ‘family violence’ extends beyond just physical harm to also include:

  • sexual abuse;
  • threats to kill or cause bodily harm to any person;
  • harassment, including stalking;
  • the failure to provide the necessaries of life;
  • psychological abuse;
  • financial abuse;
  • threats to kill or harm an animal or damage property; and
  • the killing or harming of an animal or the damaging of property.

This will now enable courts and other decision-makers to take a host of behaviours into account when determining where a child will be best protected and cared for. Speaking with the CBC, the Justice Department confirmed plans to “actively monitor” the outcome of the amendments through case law, academic research and ongoing consultations. The department also promised to work with provinces and territories to address any issues that could arise as the legislation is applied. 

Seek Legal Advice As Soon As Possible

To discuss how the amendments could affect your separation or divorce, it’s best to contact an experienced family law lawyer immediately to discuss your next steps.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting matters and mobility disputes following the breakdown of a relationship. We will work with you to ensure that your voice is represented in any dispute around the relocation of your child(ren). Contact our office today by calling us at 403-910-3000 or contact us online.

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Calgary, AB T2P 3H6

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Canmore, AB T1W 2A2

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