New Changes Proposed for Canada’s Divorce Act

By Leneigh Bosdet
Categories: Blog, Family Law

Bill C-78 was recently introduced into the house of commons proposing some revisions to the federal Divorce Act legislation which has been in place more than 30 years.

The federal Divorce Act applies only to married couples and deals primarily with divorce, child and spousal support. Each province in Canada has overlapping provincial family legislation governing support issues and property division for both married and unmarried couples. The provinces in Canada all deal with property division and common law spouses a little bit differently but the Divorce Act applies to all married couples across the country..

The summary provided for in BillC-78’s first reading is that it intends to:

  1. amend terminology related to custody and access and replace it with more neutral terms related to parenting;
  2. reiterate the primacy of the best interests of the child in family law decisions and establish a non-exhaustive list of criteria for determining those best interests;
  3. encourage the use of out of Court dispute resolution processes such as collaborative practice and parenting coordinators;
  4. explicitly refer to family violence as a consideration in the best interests of the child analysis and introduce measures to assist the Court in addressing family violence; and
  5. simplify the production of information for support purposes and the enforcement mechanisms for recipients of support.

Interestingly, essentially all of these proposed revisions (with the exception of those dealing with production and enforcement of support) have also been addressed and incorporated into BC’s provincial Family Law Act which became Law in 2013.

The terms custody and access have become loaded, diluted and lost their meaning over time and in my experience the transition to focusing on the terminology of parenting time has been a positive one which focuses the interests back on the child.

Mechanisms which promote the provision of income information for support purposes is currently an area which can be costly and frustrating for recipients of support and I am hopeful that the proposed amendments will streamline this process. Child and spousal support has been shown consistently to assist in lifting children out of poverty in our country and facilitating that goal is a worthy pursuit.

There are several areas where the proposed revisions do not go far enough and some areas which in my view should be addressed which are not covered in the proposed amendments.

The Canadian Bar Association in their December 2017 letter made many requests for revisions including addressing the area of child support in shared parenting arrangements (arrangements where the children live close to equal time with both parents) which are becoming more common and where the current legislation can be confusing and lead to disputes. Unfortunately, there are no revisions proposed to clarify and simplify that particular subject.

I would also like to see out of Court mechanisms be strengthened further and even mandatory in certain situations.

In summary, the proposed changes were long overdue and certainly a positive step forward in creating a more equitable and child focused approach for divorcing couples in our country.