Strengthening and modernizing Canada’s family justice system
On May 22, 2018, the Government of Canada introduced new legislation to amend Canada’s federal family laws related to divorce, separation, and parenting. This proposed legislation will make federal family laws more responsive to Canadian families’ needs. The proposed legislation would introduce changes to the:
- Divorce Act
- Family Orders and Agreements Enforcement Assistance Act, and
- Garnishment, Attachment and Pension Diversion Act
Family law in Canada is an area of shared jurisdiction between federal and provincial and territorial governments. The Divorce Act applies to married couples who are divorcing. Provincial or territorial legislation applies to:
- unmarried or common-law couples, and
- married couples who are separated but not divorcing
Provinces are responsible for the administration of justice, including the court system, where cases related to the Divorce Act and the Federal Child Support Guidelines are decided. Provinces are also responsible for enforcing support orders, but the federal government may assist them by helping find a support payor, or by garnishing federal money owed to a support payor to satisfy a support debt.
Federal family laws have not been substantially updated in 20 years.
The proposed legislation is designed to meet four key objectives:
- Promote the best interests of the child
- Address family violence
- Help to reduce child poverty
- Make Canada’s family justice system more accessible and efficient
Promoting the best interests of the child
In family law, a child’s best interests is the top priority when making parenting decisions. The proposed legislation would promote this through several different measures:
Best interests criteria
These amendments would set out a list of specific factors that a court must consider when deciding what would be in a child’s best interests in the child’s particular situation. Along with the main considerations of the child’s physical, emotional and psychological safety and wellbeing, other factors would include:
- the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
- the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
- the child’s views and preferences
Each child is different and each family is different. There would be no one-size-fits-all parenting arrangement. Courts would be required to order the maximum amount of parenting time for each parent that is in the child’s best interests. The best interests criteria would help courts tailor parenting arrangements for each child’s specific situation.
The bill also proposes changes to the wording used to describe parenting arrangements. This would make the law more child-focused, with a greater emphasis on the actual tasks of parenting. The proposed new approach would use "parenting orders" to replace orders for custody and access under the Divorce Act.
A parenting order would set out each parent’s decision-making responsibilities, which refers to making important decisions on behalf of a child, and "parenting time." Both parents could have parenting time, depending on each child’s best interests. The new wording is neutral and emphasizes that both former spouses will be caring for their child when the child is with them.
This more neutral wording would also be less likely to reinforce the idea of a "winner" and a "loser" in decisions about parenting arrangements.
Changes of residence
Other proposed amendments to the Divorce Act would address issues with parents or children relocating following a divorce. A proposed new requirement to give notice of plans to move would help to make sure that key information about a potential move is shared with others who have responsibilities for the child. A court would be able to modify the notice requirements where safety is an issue. There would also be new guidelines to help courts decide whether the move would be in a child’s best interests and should be allowed.
Addressing family violence
The current Divorce Act does not include measures for dealing with family violence, even though it can have a serious impact on children’s wellbeing. Proposed amendments to the Divorce Act would fill that gap.
For the purposes of the Divorce Act, family violence would be defined as any conduct that is:
- a pattern of coercive and controlling behaviour
- causes a family member to fear for their safety
- directly or indirectly exposes a child to such conduct
The bill proposes the following measures to address family violence:
- Courts would have to take family violence into account. A list of factors would be added to the Divorce Act to help courts assess the seriousness of the violence and how it could affect future parenting when deciding what parenting arrangements would be in the child’s best interests.
- Before making parenting, contact or support orders, courts would need to consider any other proceedings or orders involving any of the parties. This is to avoid situations where family court orders conflict with orders made by a criminal court. For example, contact or parenting time ordered by a family court may conflict with a restraining order against one of the parties.
After a divorce or separation, spouses and children are at much greater risk of living in poverty if they do not get the financial support that they are owed. The proposed legislation includes measures to:
- Provide more tools to establish and enforce child support. For example, in certain circumstances, the government would be able to release tax information to help ensure a child support amount is accurate. In keeping with Canada’s privacy laws, only certain groups, such as a judge or maintenance enforcement program, would be allowed to have this information. The Family Orders and Agreements Enforcement Assistance Act and its supporting regulations would put clear limits on to whom this type of information may be released and for what purpose.
- Lessen the need for expensive court costs. Going to court is expensive. A variety of measures proposed in this bill are aimed at reducing the need for families to go to court by making the family justice system more accessible and efficient.
Making the family justice system more accessible and efficient
A number of measures proposed in this bill would help streamline administrative processes and make family justice more accessible and affordable:
- Provincial child support administrative services would be able to perform some tasks currently left to the courts, making it faster, less costly and less adversarial to determine or recalculate child support amounts
- Provincial recalculation services would be allowed to recalculate child support at any time if needed, instead of on a fixed schedule
- The process of varying a support order for parties living in different provinces or territories would be streamlined, allowing only one court to be involved instead of courts in both jurisdictions
- Family law professionals would have to encourage clients to use ways other than litigation to resolve disputes, such as giving them information about family justice services that might help them
- Some amendments would help make the law clearer, such as correcting inconsistencies in the English and French versions of the law
The bill would also bring Canada closer to becoming a party to two international family law conventions:
- the 1996 Hague Convention on the Protection of Children
- the 2007 Hague Child Support Convention
Canada cannot ratify and become a party to the Conventions until the changes proposed in this bill are made. Being a party to the Conventions would make it easier to resolve some family law issues when one or more of the parties lives in another country.
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