A number of anticipated reforms to the federal Divorce Act scheduled to be implemented on July 1 have now been delayed, according to an announcement dated June 5 from Justice Minister David Lametti. The reason for the delay was cited as the still-lingering effects of the COVID-19 pandemic:
“The COVID-19 pandemic has had a significant impact on the operation of governments, courts and Canada’s family justice system. After consultation with the provinces and territories, we have determined that a delay in the coming into force of changes to the Divorce Act is necessary to ensure they have sufficient time to adjust their laws and regulations to reflect the legislative changes in the Divorce Act. We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members. We are working hard with our partners to implement these changes.”
The changes have now been pushed to March 1, 2021, creating a delay of nearly a year for long-awaited amendments under Bill C-78, aimed at protecting vulnerable family members, particularly children and spouses who have been victims of domestic abuse.
Key changes under Bill C-78 include adjustments to the best interests of the child, custody and access and domestic abuse.
Family law has been moving away from the terminology of ‘custody and access’ for some time now, and the Divorce Act reforms are set to update these terms in the federal statute. Once implemented, the term ‘custody’ will be replaced with ‘parenting time’, and ‘access’ will be replaced with ‘parental decision-making’. These new terms are more aligned with how divorced parents approach parenting in the modern age, and do away with terms that promoted a more adversarial outcome (e.g. a parent ‘winning’ a custody battle). Further, they put more emphasis on the concept of the best interests of the child, focusing on familial relationships.
As Canada has lacked federal statutory guidelines on how to approach a parent’s right to move their child to another jurisdiction, and further away from the other parent. Bill C-78 aims to address this by updating the framework for how these cases will be determined by courts. We have previously written more extensively on this topic and explained how the framework will be implemented here.
The current version of the Divorce Act sets out the factors to be assessed when considering the best interests of the child as the ‘conditions, means, needs, and other circumstances of the child’. Bill C-78 will expand the scope of what courts shoudl take into account when determining a child’s best interests. Firstly, courts will operate under the assumption that a child should have as much time with each parent as possible, with due consideration given to the other factors, which will now include:
One of the most anticipated reforms under Bill C-78 is the consideration of family violence when a court is making decisions around parenting arrangements. Particularly with respect to violence that can be described as “a pattern of emotionally abusive intimidation, coercion, and control coupled with physical violence”, courts will be required to consider how a history of such behaviour should affect parenting determinations. Violent actions against a domestic partner can affect not only the safety of a child but also their general emotional well-being and mental health in both the short and long term. If a family has a history of violent behaviour, courts must now take that into consideration when determining a parent’s ability to properly care for a child.
With the number of divorces and separations expected to soar now that COVID-19 restrictions are being lifted and people are freer to leave their homes, many are disappointed that these new changes have been postponed. However, some are hopeful that courts will factor these considerations into current decisions even though they are not yet codified in the Divorce Act. According to a recent CTV article:
Wayne Barkauskas, former chair of the Canadian Bar Association’s family law section…is hopeful that judges are aware of the coming reforms and that they will be reflected in parenting decisions regardless of when they actually go into effect.
“A lot of the changes in the Divorce Act, I think courts and the profession have already begun adopting some of the principles contained within the legislation”[.]
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