Strengthening and modernizing Canada’s family justice system

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On June 21, 2019, Royal Assent was given to Bill C-78 to amend Canada’s federal family laws related to divorce, parenting and enforcement of family obligations. This initiative will make federal family laws more responsive to Canadian families’ needs through changes to the:

Federal family laws have not been substantially updated in more than 20 years. The legislation has four key objectives:

It is important to note that many of the changes do not take effect immediately. As time is needed for the public, family justice professionals, and various levels of government to adjust to the changes within the family justice system, the majority of the amendments to the Divorce Act will only come into force July 1, 2020. Amendments to FOAEAA and GAPDA will come into force either on Royal Assent or over the next two years.

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:

Provinces and territories 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 and territories are also responsible for enforcing support orders, but the federal government may assist them through FOAEAA and GAPDA by helping find a support payor, by garnishing federal money owed to a support payor to satisfy a support debt or by suspending a debtor’s passport or federal licences.

Promoting the best interests of the child

In family law, a child’s best interests is the top priority when making parenting decisions. The Divorce Act will promote this through several different measures:

Best interests criteria

These amendments 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 include:

Each child is different and each family is different. There is no one-size-fits-all parenting arrangement. Courts will be required to order parenting time to each parent based on the child’s best interests. The best interests criteria will help courts tailor parenting arrangements for each child’s specific situation.  

Child-focused terminology

There are also changes to the wording used to describe parenting arrangements. This makes the law more child-focused, with a greater emphasis on the actual tasks of parenting. The new approach uses "parenting orders" to replace orders for custody and access under the Divorce Act.

A parenting order sets 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 is also less likely to reinforce the idea of a "winner" and a "loser" in decisions about parenting arrangements.

Changes of residence

Other amendments to the Divorce Act address issues with parents or children relocating following a divorce. A new requirement to give notice of plans to move helps make sure that key information about a potential move is shared with others who have responsibilities for the child. A court will be able to modify the notice requirements where safety is an issue. There are also new guidelines to help courts decide whether the move would be in a child’s best interests and should be allowed.

Addressing family violence

Before the changes, the Divorce Act did not include measures for dealing with family violence, even though it can have a serious impact on children’s wellbeing. The amendments to the Divorce Act fill that gap.

For the purposes of the Divorce Act, family violence is defined as any conduct that is:

 The following measures will address family violence:

Reducing poverty

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 updated legislation includes measures to:

Making the family justice system more accessible and efficient

A number of new measures will help streamline administrative processes and make family justice more accessible and affordable:

This initiative also brings Canada closer to becoming a party to two international family law conventions:

Canada cannot ratify and become a party to the Conventions until the legislative changes come into force, and at least one province or territory also makes the necessary legislative changes. 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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