Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78)
Overview of Bill C-78: Legislative objectives
A. Promoting the best interests of the child
The best interests of the child is a foundational legal principle in Canadian family law. The Supreme Court of Canada has referred to the best interests of the child as a child’s “positive right to the best possible arrangements in the circumstances.”Footnote 9 The best interests of the child is also a significant principle internationally. For example, it forms the basis of Article 3 of the United Nations Convention on the Rights of the Child,Footnote 10 which calls for the child’s best interests to be a primary consideration in all actions involving children. The best interests of the child test also underlies much of provincial and territorial family law. There is considerable consensus that the best interests of the child is the appropriate basis upon which to make decisions related to children.
Bill C-78 would maintain the best interests of the child as the only consideration for parenting decisions under the Divorce Act and includes various measures to promote the best interests of the child. For example, the bill would create a duty for parents to exercise their responsibilities for their children in a manner consistent with the best interests of the child.
Bill C-78 also proposes a list of best interests of the child criteria highlighting key factors related to children’s well-being. This list would help parents, family justice professionals and judges determine what is best for the child in a particular case.
Bill C-78 would also replace the terms “custody” and “access” with terminology focused on parents’ responsibilities for their children. Family law academics have written that this change in terminology supports children’s best interests by helping to reduce parental conflict.Footnote 11 Bill C-78 would introduce “parenting orders” and “contact orders” through which courts could provide specific direction on the care of children.
Finally, Bill C-78 would introduce provisions to help parents and courts resolve disputes over relocation after separation and divorce. This would support the objective of promoting the best interests of the child by contributing to a reduction in parental conflict.
1. Exclusive focus on the best interests of the child in parenting matters
Over the years, several private member’s billsFootnote 12 have proposed changes to the Divorce Act that would have created a legal presumption of equal shared parenting meaning equal time and joint decision-making responsibility. This presumption would apply unless a parent could prove that such an arrangement is not in the best interests of the child. While in most cases parents can and should share responsibilities for their children, a presumptive equal shared parenting arrangement does not work for all families. For example, if one parent travels frequently with work, or does shift work, it may be very difficult to share time with a child equally. If there has been family violence, sharing responsibilities may be dangerous to the child and other family members. An imbalance in power between spouses—as well as the high cost of legal representation—may make it difficult for a party to present evidence to convince a court not to apply the presumption.
Several stakeholders, including the Canadian Bar Association,Footnote 13 have argued that a presumption could increase litigation by forcing parents to lead evidence showing that the other parent is less fit, thus fuelling conflict. The Special Joint Committee on Child Custody and Access noted that a parenting presumption would shift the focus of the inquiry in parenting matters away from the best interests of the child.Footnote 14 A presumption would be inconsistent with Bill C-78’s emphasis on children’s best interests.
2. Best interests criteria (Clause 12)
The Divorce Act does not currently include a list of factors for courts to consider in determining what is in the best interests of the child in a particular case. All provinces and territories but one include such a list in their family law legislation, and a substantial body of case law has developed defining the best interests of the child test.Footnote 15 Bill C-78 proposes a non-exhaustive list of best interests of the child criteria to provide some consistency and clarity and to assist in guiding parents, family justice professionals, lawyers and courts.
In addition to a list of criteria, Bill C-78 proposes a “primary consideration.” The primary consideration would specify that a child’s safety, security and well-being are the most important factors to consider. In some cases, there may be conflicts between two or more of the enumerated best interests of the child criteria. The primary consideration would help to resolve any such conflicts by stressing that the child’s safety, security and well-being must always come first. Similar provisions are included in the family law statutes of Alberta and British Columbia.
The proposed list of best interests criteria would be non-exhaustive. Parents and courts could therefore consider factors that are relevant to the circumstances of a particular child even if such factors do not appear on the proposed list. The proposed list would not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion would be determinative, and the weighting for each criterion would depend on the circumstances of the particular child. The remainder of this section includes descriptions of each of the proposed best interests of the child criteria.
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
This criterion would emphasize the need to focus on the individual circumstances of each child. For example, a child’s temperament can influence their ability to respond to change and may affect the parenting style they require. If the child has any special physical or psychological needs, such as a physical disability, this may be important for the court to consider. This criterion would recognize that each child experiences their parents’ divorce or separation in unique ways.
A child’s needs also change over time. A child’s stage of development influences their reaction to any situation. For example, most infants require more predictability in their schedules and routines than adolescents do. This factor takes these types of developmental issues into account.
b. The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons
Courts generally consider the nature of the relationship that existed during the marriage between the child and each parent when determining parenting arrangements. Many judicial decisions and family assessment reports begin by reviewing the relationship the child has had with each parent.
Children can also have important relationships with siblings, grandparents and other extended family members. These relationships can provide stability at a time of substantial change in the child’s life. This proposed factor would require consideration of the importance of children’s ongoing contact with existing extended family members, such as grandparents. This contact would primarily take place through the parenting time of the spouses, although in some cases, a contact order may be necessary.
c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
A child’s relationship with each parent is important, and it is generally important for each parent to support the child’s relationship with the other parent. Maintaining a positive relationship with both parents provides stability for a child when they are going through a significant life change, their parent’s separation. This provision would reflect the “friendly parent rule” currently contained in subsections 16(10) and 17(9) of the Divorce Act.
If a parent actively attempts to undermine their child’s relationship with the other parent, courts may need to consider this in making a parenting order.
In certain situations, it may be inappropriate for one parent to facilitate a child’s relationship with the other parent, for example, in some situations of family violence where there is a safety concern. As a result, this provision is included in the list of best interests criteria where a court can consider it along with other factors relevant to the child’s welfare, keeping in mind the primary consideration relating to the child’s safety, security, and well-being.
d. The history of care of the child
In assessing the potential roles that individuals can play in a child’s upbringing after the parents’ divorce, courts may need to consider the roles these individuals played before the divorce. A party’s knowledge of and ability to cope with a child’s daily routine are an important part of their ability to provide ongoing daily care to that child. The history of the child’s relationship with each individual applying for an order also relates to the issue of stability for the child, which includes the concept of continuity of care.
e. The child’s views and preferences
Canada is a party to the United Nations Convention on the Rights of the Child. Article 12 of this Convention provides that governments should recognize that children who are capable of forming their own views, depending on their age or maturity, have the right to participate in decisions that affect their lives. Children are directly affected by the parenting decisions that parents and judges make about them. This proposed factor would require consideration of children’s views on issues that are important to them. It would also direct that courts and parents give weight to the child’s views in accordance with the child’s age and maturity.
f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
In determining parenting arrangements, courts often consider the relevance of a child’s culture, language, religion and spirituality. Depending on the circumstances of the child, a child’s culture or religion may provide an added support system for the child. Children’s best interests are generally furthered when they can learn not only from formal education but also through experience and observation. The potential for a child to develop their own cultural identity and positive self-esteem may be important factors for the courts to consider. A parent’s ability to maintain and promote a child’s comprehension of and link to the child’s cultural, linguistic and religious heritage would be one consideration with respect to a child’s overall well-being.
As is consistent with child protection legislation in several provinces, this criterion specifically directs that consideration be given to a child’s Indigenous heritage, if applicable.
g. Any plans for the child’s care
Parents are generally best placed to identify what is best for their children. Bill C-78 aims to encourage parents to develop parenting arrangements with as little court intervention as possible. In determining the best interests of the child, a court may consider how parents plan to care for their children post-divorce.
One tool that some parents, mediators and lawyers use to help determine how parents will share responsibilities following separation and divorce is a “parenting plan.” If parties agree to a parenting plan, proposed section 16.8 would require a court to include its provisions in a parenting or contact order, as applicable, unless it is not in the best interests of the child.
Parenting plans are one way that parents can express their views about parenting post-divorce, but this criterion could include other ways for parents to describe plans for their children’s care and upbringing, such as pleadings or affidavits.
h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
Some parents may be unable or unwilling to meet their responsibilities due to certain limitations. These limitations may raise real concerns for the child’s health, safety and well-being. This criterion would help ensure that courts consider parenting ability and willingness in the assessment of a child’s best interests.
The proposed criterion would not focus simply on the past, but also on the present and future ability and willingness to care for and meet the needs of the child. Courts would be required to consider an applicant’s strengths and limitations when determining parenting arrangements or contact orders.
i. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate
Children benefit when parents are able to cooperate and communicate. Courts need to assess parents’ ability and willingness to work together, as this will influence the type of parenting arrangements that may be considered. Parents who are able to cooperate and communicate are more likely to successfully share decision-making responsibilities. They are also more likely to be able to manage flexible parenting arrangements that set out relatively few details.
Flexible arrangements may not be workable for parents unable or unwilling to cooperate or communicate well with each other. When parents are not able or willing to cooperate or communicate effectively, children may find themselves in the middle of their parents’ disputes. These parents may need more detailed agreements or orders clearly specifying the arrangements for the children.
j. Any family violence
This is discussed below, in the “Addressing family violence” section.
k. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
This is discussed below, in the “Addressing family violence” section.
3. Parenting terminology (Clauses include 1(1), 1(7), 12)
Child custody and access are among the most emotionally charged and heavily contested matters in family law. They account for a disproportionately high number of court events and take longer to resolve.Footnote 16 Some academics have suggested that this may be due in part to the terms we use to describe parents’ responsibilities.Footnote 17 “Custody” has connotations of ownership and is often associated with the concept of police detention. The terms custody and access also reinforce a winner-loser mentality where the “winner” is the custodial parent and the “loser” is the access parent. The Special Joint Committee on Child Custody and Access strongly recommended that Parliament replace these terms with more child-focused terminology. Footnote 18
Bill C-78 would remove the terms “custody” and “access” from the Divorce Act. It would introduce “parenting orders” and also the concepts of “parenting time” and “decision-making responsibility.” Parenting orders would be available for those who either have or wish to take on the parental responsibilities associated with the care and upbringing of a child.
Replacing “custody” and “access” terminology is intended to encourage parents to focus on the needs of their children. Many jurisdictions have already moved away from the concepts of “custody” and “access.” For example, Alberta,Footnote 19 British Columbia,Footnote 20 several American states, and countries such as the United KingdomFootnote 21 and AustraliaFootnote 22 have done so. In Canada, many lawyers and judges already make orders with respect to parenting arrangements under the current Divorce Act without using the terms “custody” and “access.”Footnote 23
Alberta was the first province to adopt new parenting terminology in its legislation. It conducted an extensive review of its changes to family law in 2009.Footnote 24 It found that half of lawyers surveyed supported the change, nearly three quarters believed that the new terminology facilitates collaboration, and over 80% believed it “reflects current thinking about children and families.”Footnote 25 British Columbia consulted with stakeholders through a comprehensive discussion paper before introducing its new legislation. Most respondents agreed with the proposal to adopt new parenting language.
Case law from the Québec Court of Appeal highlights the compatibility of the Divorce Act and the parenting provisions of the Civil Code of Québec.Footnote 26 The proposed amendments in Bill C-78 would not change the interaction between these laws.
4. Parenting orders (Clause 12)
As mentioned, Bill C-78 would introduce “parenting orders” which could set out “parenting time” and “decision-making responsibility.” Parenting time would be the time during which someone in the role of a parent is responsible for a child. This would include time when the child is not physically in the care of that person, such as when the child is at school or in daycare.
“Decision-making responsibility” would refer to the responsibility to make significant decisions about a child, such as decisions about a child’s health and education. Both spouses, a parent, and any person currently in or seeking a parental role in the life of a child could apply for a parenting order. Non-spouses would seek leave of the court, as is the case currently for custody orders under the Divorce Act. This preserves judicial resources, allowing courts to focus only on applications that are in the best interests of the child.
Bill C-78 would codify some existing practices of family courts under the Divorce Act and would introduce some new concepts.
a. Parenting time
Bill C-78 includes a provision stating that parenting time may be allocated according to a schedule. This may be helpful in situations of high conflict, where a flexible schedule may lead to more frequent disputes. Bill C-78 would also indicate that each person with parenting time may make day-to-day decisions about a child when the child is in their care, unless a court orders otherwise. Day-to-day decisions would include matters such as a child’s bedtime. If a particular matter that would normally be a day-to-day decision is significant to an individual child, a court could make special mention of the matter in a parenting order. For example, if parents decided that a child was to be vegetarian, they would each choose meals for the child avoiding meat. A parenting order could provide for this.
Bill C-78 preserves the Divorce Act principle that a child should spend as much time with each parent as is consistent with the child’s best interests. Under the current Divorce Act, this is reflected in what is known as the “maximum contact principle.” Bill C-78 proposes a “maximum parenting time” principle. This principle would be subject to the “primary consideration” that a court must consider a child’s physical, emotional and psychological safety, security and well-being above all else. This may be particularly important in cases of family violence.
It is important to note that the maximum parenting time principle is not a presumption of equal time. As the Supreme Court of Canada has held, “the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted.”Footnote 27
b. Decision-making responsibility
Bill C-78 would introduce the concept of “decision-making responsibility” as the responsibility for making significant decisions about a child’s well-being, including decisions about the child’s health, education, language, religion, and significant extra-curricular activities. This responsibility could be allocated to one or both spouses or other persons currently—or intending to—stand in the place of a parent. Bill C-78 also recognizes the option of separately allocating different decision-making responsibilities to each parent. This may be helpful in cases where a court determines that joint-decision-making responsibility is not appropriate, but it would be in the child’s best interests for both parents to be involved in certain decisions about the child.
“Significant extra-curricular activities” is proposed as one of the enumerated items in the definition of decision-making responsibility. Such activities are often the subject of considerable disagreement and sometimes litigation. This provision would guide parents and courts to consider these issues as early as possible in the process of coming to agreements. The term is intended to capture activities that require a greater investment of a family’s resources, whether in terms of time or finances.
c. Prohibition on removal of child
Courts will, in exceptional cases, include what is commonly called a “non-removal clause” in an order if there is a concern that a child may be at risk of abduction or in cases of very high conflict. This practice has developed despite the lack of explicit mention of this authority under the Divorce Act. To promote the best interests of children, Bill C-78 includes a variety of measures intended to help prevent child abduction. One example is the proposed requirement that applications for parenting orders be heard in the province in which a child is habitually resident. The provision prohibiting the removal of a child from a specified geographic area without the written consent of a specified person or without a court order authorizing the removal is another. This provision would simply codify courts’ current practice in cases where there is a risk of abduction.
5. Contact orders (Clause 12)
In most cases, parents facilitate contact between their children and other special people in their children’s lives, such as grandparents. Sometimes when a relationship breaks down, the relationship between the former spouses and the children’s extended family may become strained. The former spouses may be unable or unwilling to facilitate contact when this happens. Bill C-78 proposes “contact orders” to address such situations.
A non-spouse may apply for a “contact order” to have time carved out of a child’s schedule to spend with the child. Because contact orders would not be necessary for most families, and to reduce unnecessary litigation, the applicant would have to seek leave of the court to bring an application for a contact order. Contact orders could be subject to the same terms and conditions as parenting orders, such as the prohibition on removal of the child. Because the role of a person with a contact order would not be a parental one, however, there are differences between contact orders and parenting orders. For example, persons with contact orders are not automatically entitled to make day-to-day decisions about a child during contact.
6. Changes of residence and relocation (Clause 12)
Relocation, or moving a child after separation and divorce, is one of the most litigated family law issues. In a 2016 survey of lawyers and judges, over 98% of respondents indicated that disputes are harder to settle when relocation is involved.Footnote 28
The leading case in this area is Gordon v Goertz, decided by the Supreme Court of Canada in 1996.Footnote 29 The Supreme Court held that, before actually considering the merits of an application to vary a custody order in the context of a proposal for relocation, a court must be satisfied that the relocation constitutes a material change in the circumstances of the child. If it does constitute such a change, in determining the best interests of the child, the court should consider, among other factors
- The existing custody and access arrangements and relationship between the child and each parent
- The desirability of maximizing contact between the child and both parents
- The views of the child
- The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child
- The impact of the potential disruption on the child of either a change in custody or removal from their current environment
According to the Supreme Court, there is no presumption in favour of the custodial parent, although the views of the custodial parent are entitled to “great respect and the most serious consideration.”
Gordon v Goertz did not address issues related to notice of a move, or who must bring an application for variation of the order before a relocation may occur.Footnote 30
There has been a great deal of criticism in the academic literature and by practitioners about the state of the law related to relocation. Some have argued that the decision in Gordon v Goertz does not provide sufficient certainty, making it difficult to predict the outcome in a case, advise clients and settle cases.Footnote 31 The Supreme Court’s direction that the reason for the move should only be considered exceptionally has largely been ignored, as in practice the reason for the move often relates to an analysis of the best interests of the child.
Over time, some patterns in the case law have emerged. In particular, two patterns are important to highlight. First, a relocation is more likely to be denied if there is a shared care/custody arrangement. Second, where there is a clear primary caregiver for a child, a move is more likely to be approved.Footnote 32
There is little empirical research on relocation’s effects on children, and most of what is available is limited by small sample sizes and other methodological challenges. While some research suggests that relocation can be disruptive for children and affect their relationships, a range of factors needs to be considered.Footnote 33
a. Creating a framework for changes of residence and relocation
Bill C-78 proposes a framework for changes of residence and relocation that includes three broad components:
- Notice of a proposed change of residence or relocation
- Additional best interests criteria for relocation cases
- Burdens of proof that would apply in certain relocation cases
Key to the application of these provisions is the concept of “relocation” which would be defined as a move—either by a child or a person with parenting time or decision-making responsibility—that could have a significant impact on the child’s relationship with a person with parenting time or decision-making responsibility, a person applying for such responsibilities, or a person who has contact with the child under a contact order.
b. Notice provisions
Any move—including a local move—is a change of residence. Under the proposal, a person with parenting time or decision-making responsibility would be required to give notice to any person with parenting time, decision-making responsibility or contact of a change of their residence or that of the child. The notice would include information about the new address and contact information.
Some moves, however, are likely to have a significant impact on a child’s relationship with others. Where a move could have such an impact—for example, in the case of a long distance move—this would be considered a relocation. The notice required for a relocation would need to be given at least 60 days before the proposed move and would also need to include a proposal about how the parenting arrangements could be changed.
Even when a parent proposes to move without the child, the notice provisions would nonetheless be applicable. This is because whether it is the child or the parent who is moving, the impact on the child would likely be similar. The move may affect the parenting arrangement or potentially even the relationship between the parent and the child.
Bill C-78 includes similar notice requirements for a person with contact who proposes to move.
A court could order that the proposed notice requirements should not apply, or could modify the requirements as necessary. The situation of family violence is specifically highlighted as a circumstance where the court could make such an order. These provisions are intended to promote the safety of family members, especially children.
c. Objection to a move
If a person with parenting time or decision-making responsibility objects to a relocation, they would be encouraged to negotiate a resolution with the person proposing the relocation. Under the proposed amendments, the parties would have a new obligation to try to resolve matters out of court. If a resolution does not seem possible, the person with parenting time or decision-making responsibility who is opposing the relocation could formally object by filing a court application to prevent the move within 30 days of having received the notice. The court would then be required to determine whether the move should be permitted, based on the best interests of the child.
Requiring the person opposing the move to file the court application would conserve judicial resources. Courts would only have to deal with relocation applications if there is a disagreement.
If no application is filed objecting to the move and there is no order that prohibits the move, the person proposing the move would be entitled to move as of the date proposed in the notice.
The notice provisions proposed in Bill C-78 are broadly consistent with those in British Columbia’s Family Law Act and Nova Scotia’s Parenting and Support Act. British Columbia and Nova Scotia are the only two Canadian jurisdictions that have set out a relocation process in their family laws.
d. Additional best interests criteria in relocation cases
In addition to the general best interests of the child criteria, Bill C-78 proposes seven criteria to be considered in all relocation cases. Similar to the general best interests of the child criteria, none of these factors is determinative.
(a) Reasons for the relocation
This factor would depart from the Supreme Court of Canada decision in Gordon v Goertz,which held that the reasons for the move should generally not be considered. The reason for the move can be important in determining whether, in all of the circumstances, the proposed move is in the best interests of the child. For example, it would be highly relevant for the court to know whether the move is to allow a parent to obtain a job that would improve their financial circumstances, and thus those of the child. There are many reasons why a move might be proposed, and it can be important for the court to be aware of these.
(b) Impact of the relocation
From a child-focused perspective, it would be important for the court to consider the possible impact of the move on the child. For example, this criterion would direct the court to consider the benefits and disadvantages to the child of living in each location.
(c) Amount of time spent with the child by each person who has parenting time
It is relevant for the court to consider the level of disruption a relocation may have on a child’s relationship with their parents, whether or not the move is permitted. For example, a court may need to consider that, where a child spends a significant amount of time with each parent, a relocation could be quite disruptive to the existing arrangement. In contrast, if one parent is clearly primarily responsible for the child, and is proposing to move with the child, the court will want to consider the impact on the child should that child not be permitted to move with the parent who has been primarily responsible for them.
(d) Whether notice was provided
Several of the factors are more process-oriented, and relate to the overall context of the proposed move. Factor (d), relating to whether notice has been given, would promote an orderly approach to moving, and would create an incentive for parents to comply with the notice requirements.
(e) Orders or agreements specifying geographic area
This factor would recognize that sometimes parents make agreements or courts make orders that include a term that a child is to live within a specific geographic area. This term may have been negotiated in good faith in exchange for other terms, or the court may have included such a term for specific reasons. While circumstances related to the best interests of the child can change over time, this would be one factor for a court to consider.
(f) Reasonableness of the proposal
This factor would recognize that it is important to consider the practicality of the specific proposal to relocate. The court may consider matters such as the distance involved and the age of the child in the context of possible means of transportation.
(g) Compliance with family law obligations
This factor would recognize that courts generally need to consider whether each parent has been complying with existing legal obligations. These obligations may relate for example to parenting time or support obligations. This is important contextual information about which the court should be aware.
e. Factor not to be considered
Parents seeking to relocate with their children are sometimes faced with the difficult question of whether they would proceed with a relocation even if they were not permitted to bring their child. This situation has been referred to in the case law as a “double-bind” question. If a parent says they would not relocate without their child, this response might be interpreted as evidence that the relocation is not sufficiently important, and therefore the relocation should not be permitted.
On the other hand, if the parent says they would relocate without the child, this response might be seen as evidence that the parent is not sufficiently devoted to their child. These questions divert attention from the legal issue before the court which is whether the move as proposed should be permitted. Bill C-78 would address this issue by directing courts not to consider whether the parent would move without the child if the move were prohibited and, conversely whether the parent would stay if the move were prohibited.
f. Burdens of proof
Consistent with the current law, the ultimate test for whether a relocation should occur would remain the best interests of the child. However, to assist parents, lawyers and judges in undertaking a best interests analysis, Bill C-78 would add specific burdens of proof.
If parents spend substantially equal time with the child and share responsibility for the care of the child fairly equally, the person proposing the move would have to demonstrate why the move is in the best interests of the child.
If one parent clearly has primary responsibility for the care of the child—that is, the child is in the care of that parent the vast majority of the time—the parent opposing the move would have to demonstrate why the move is not in the child’s best interests.
In all other cases, each parent must demonstrate whether the move would be in the best interests of the child. The proposed burdens recognize broad trends in the case law.
The starting points proposed for relocation situations would apply only where the parties have an order, arbitral award or agreement in place and they are substantially complying with the order. In these cases, either the court, an arbitrator or the parties have determined what arrangement is in the best interests of the child, the parties are generally living according to the terms of that agreement and one party is now proposing to change that arrangement.
The burdens would not be based on a precise percentage of time. Percentages could lead to bargaining over a specific percentage of parenting time, rather than focusing on what is in the best interests of the child when making parenting arrangements.
g. Costs relating to exercise of parenting time
Amendments would specify that a court, having found that a relocation may proceed, may determine if and how the costs associated with exercising parenting time would be shared between the parties.
A relocation could result in a child moving a considerable distance from a parent with parenting time. This could result in a significant increase to the other party’s travel and accommodation costs. A court could determine the proportion of such costs that each party would pay if a relocation proceeds.
B. Addressing family violence
Family violence includes various forms of abuse, mistreatment or neglect that adults or children may experience in their intimate, family or dependent relationships. Family violence is a devastating reality for Canadians from many walks of life. It may cause, contribute to or result from a family breakdown. In 2014, 4% of people living in Canadian provinces with a current or former spouse or common-law partner (approximately 760,000 people) reported having been physically or sexually abused by their spouse during the preceding five years.Footnote 34 In fact, separation and divorce can exacerbate an already violent relationship and the period following separation is the highest time of risk. From 2007 to 2011, a woman’s risk of being killed by a spouse from whom she was separated was nearly six times higher than the risk of being killed by a spouse with whom she was living.Footnote 35
While overall rates of family violence may not differ greatly between men and women, there are significant gender differences in the severity of the violence. In 2014, women were twice as likely as men to report being sexually assaulted, beaten, choked or threatened with a gun or knife. In contrast, men were three and a half times more likely to report being kicked, bitten or hit with something.Footnote 36
Some forms of family violence are clearly criminal in nature, such as assault or sexual assault. In contrast, other forms of family violence, such as psychological abuse, such as ridiculing, constantly criticizing, or threatening deportation, are abusive in nature and are often a precursor to physical or sexual violence, but do not constitute criminal behaviour. All of these forms of family violence, however, are highly relevant to the family law context, and, in the context of the Divorce Act, they are particularly relevant to a determination about parenting and contact.
As knowledge about the scope of family violence has expanded, so has the understanding that not all violence is the same. Experts have identified at least four types of intimate partner violence: Footnote 37
- coercive and controlling violence: violence that forms “a pattern of emotionally abusive intimidation, coercion, and control coupled with physical violence against partners.”Footnote 38
- violent resistance: violence in response to coercive and controlling violence. The violence is generally a response to an assault and the objective is to protect oneself or another person.
- situational (or common) couple violence: violence that is not associated with a general desire to control one’s partner, but to a particular incident or situation. It is generally a result of an inability to manage conflict or anger.
- separation-instigated violence: violence that generally occurs around the time of separation with a small number of incidents. It can range from minor to quite severe.
These distinctions are particularly important in the context of parenting determinations because, depending on the type of violence, different parenting arrangements may be in the best interests of the child.Footnote 39
While all violence is of concern, the most serious type of violence in the family law context is coercive and controlling violence. This is because it is part of an ongoing pattern, involves more danger, and is more likely to be associated with compromised parenting.Footnote 40
Family violence can have a profound effect on children. Children who are exposed to violence are at risk for emotional and behavioural problems throughout their lifespan, and these impacts are similar to those of direct abuse. Some of these consequences include post-traumatic stress disorder, depression, low educational achievement, difficulties regulating emotions and chronic physical diseases.Footnote 41 In Canada in 2014, 51% of parents who reported experiencing spousal violence also reported that their children may have heard or seen assaults on them.Footnote 42 About 72% of individuals with children who experienced violence after separation indicated that a child had seen or heard the violence.Footnote 43 Research also indicates that, in families where intimate partner violence occurs, direct child abuse also often occurs. In 2014, 70% of adults who reported having witnessed spousal violence as children also reported being a victim of childhood physical and/or sexual abuse. Children who witnessed spousal violence were also more than twice as likely to experience the most severe forms of physical abuse as those who had not witnessed violence.Footnote 44
Despite all that is known about family violence, including the heightened risk after separation and its potential impacts on parenting, the Divorce Act is silent on this important issue.
Furthermore, the Divorce Act does not currently address the fact that in some cases, families may be involved with many parts of the justice system, sometimes simultaneously. This is particularly true in cases of family violence, where the criminal justice system, the child protection system and the family justice system may be involved. There are challenges in coordinating the responses of these systems, which have been identified in the federal, provincial and territorial report Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems (“Making the Links”).Footnote 45 For example, if a family court is not aware of a civil protection order or a criminal order that prohibits contact or communication between the parties, an inconsistent order may be issued, which can create problems in terms of enforcement of the orders, confusion for the parties, and potential safety issues. Relatedly, and as discussed in Making the Links, it is not possible to coordinate the various proceedings unless the courts are aware that the other proceedings exist.
1. Divorce Act amendments (Clauses 1(7), 8, 12)
Bill C-78 proposes several amendments to the Divorce Act to address family violence.
a. Coordination of court proceedings (Clause 8)
Bill C-78 would create a new duty for the court in any proceeding under the Act where there is a request for corollary relief, meaning a request for a parenting order or a child or spousal support order. Courts would be required to consider the existence of any civil protection, child protection or criminal proceedings or orders that involve the parties and are pending or in effect.
The purpose of the section would be to facilitate the identification of existing orders and similar instruments or proceedings that may conflict with an order under the Act, and to facilitate the coordination of multiple proceedings in different courts.
The new section would specify that to fulfill its duty, a court shall ask the parties about such orders or proceedings, or shall review information that is readily available as a result of a search conducted under provincial law. Thus, should a province or territory, in the future, have a mechanism in place to provide for systematic searches of orders and proceedings involving the parties to the family law matter, a court could rely on the information obtained from that search, rather than relying only on information provided by the parties.
b. Evidence-based definition of family violence (Clause 1(7))
For the purposes of the Divorce Act, family violence would be defined as any conduct that is violent, threatening or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. In the case of a child, it would also include direct or indirect exposure to such conduct. The definition specifically recognizes that conduct that falls within this definition would not necessarily constitute a criminal offence. The definition also has a non-exhaustive list of examples of conduct that would constitute family violence. These include physical abuse, psychological abuse, financial abuse, and the harming or killing of an animal.
c. Best interests of the child criteria (Clause 12)
As mentioned above, Bill C-78 would introduce best interests of the child criteria for the court to consider when making a parenting or contact order.
i. Presence of family violence
Bill C-78 would require that the courts consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. Courts would also consider the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.
To help determine the impact of the violence, the bill proposes a list of specific factors to consider. These would include criteria such as the nature and seriousness of the violence, whether there is a pattern of coercive and controlling behaviour, and whether the person engaging in the violence has taken any steps to prevent further violence and improve their parenting.
ii. Other proceedings or orders relevant to safety, security and well-being
Bill C-78 would also require courts to consider any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
When making a decision about parenting or contact, the court would consider any proceeding or order that is potentially relevant to the best interests of the child, even if, for example, a civil protection order is no longer in effect. This is broader than the proposed duty on the court that applies to all proceedings involving corollary relief. It would allow parties to a proceeding in relation to parenting or contact to present any evidence relevant to the child’s safety, security and well-being to the court.
The factors in the list of criteria specific to family violence and the two family violence factors in the general list of best interests criteria would all be subject to the “primary consideration.” Again, this consideration would require that courts consider a child’s physical, emotional and psychological safety, security and well-being above all else.
d. Other changes relevant to family violence (Clause 12)
As discussed above, Bill C-78 would make changes to the current “maximum contact principle.” The Divorce Act’s current maximum contact principle has two components: 1) the principle that children should have as much contact with each spouse as is consistent with their best interests; and 2) the “friendly parent rule,” a requirement that courts consider the willingness of the person seeking custody to facilitate contact with the other parent. The “friendly parent rule” would be removed from what Bill C-78 would call the “maximum parenting time” principle to become one of the best interests of the child criteria. This criterion would highlight the importance of developing and maintaining the child’s relationship with the other spouse.
Other changes would be made to promote the safety of family members who have experienced family violence. For example, orders could require that parenting time, contact or the transfer of the child from one person to another be supervised. Parenting orders or contact orders could also prohibit the removal of a child from a specific geographic area, without the written consent of specified persons or a court order.
2. FOAEAA amendments (Clause 46)
FOAEAA provides for the search and release of information from designated federal information banks to help trace and locate a family support debtor for enforcement purposes.
Bill C-78 proposes amendments that would now permit the release of information to a court for the purposes of establishing and varying support.Footnote 46 These amendments would include important safeguards that account for situations of family violence. For example, before an application for tracing could be made, FOAEAA would require the court to be satisfied that the release of tracing information would not likely jeopardize the safety or security of any person.
In addition, if an individual requests that the court make a FOAEAA application without giving notice to the other party, the applicant would have to provide the court with the results of a recent criminal record check and an affidavit. The affidavit would have to state, among other things, whether there is a court order, undertaking, recognizance or document of a similar nature that restricts the applicant’s communication or contact with the person whose information is sought.
The applicant would also have to state whether the applicant has caused or attempted to cause physical harm to the person or has caused the person to fear for their safety or security or that of another person.
Finally, where information is released to a court pursuant to FOAEAA, Bill C-78 would require that the information be sealed and kept in a location to which the public has no access.
C. Helping to reduce poverty
Separation and divorce can have significant economic impacts on families. The payment of support is a key factor in reducing the risk of poverty, especially for children, and low-income and lone-parent families. The data on the financial challenges of lone parenthood are stark. In 2016, the median net worth of Canadian couples with children under 18 was $361,400, while the median net worth of lone-parent families was less than a sixth of that at only $57,200.Footnote 47
Children need the financial support of both parents and are legally entitled to this support after separation or divorce. To determine an appropriate child support amount, federal, provincial and territorial child support laws require parents to disclose specific income information and set out penalties and consequences if a parent fails to disclose this information. This includes imputing income, which means that a court assumes that the parent’s income is a certain amount for child support purposes, and the child support order is based on that income.
The sooner a fair and accurate amount of child support is established after parents separate and payments are made, the better the outcomes are for the children. Most parents dutifully meet their legal obligations. However, some parents do not provide complete and accurate income information, despite the possible penalties and consequences. This is a significant issue that has serious consequences for children and families going through the family justice system.
Family law practitioners and judges often say that income disclosure issues are one of the most contentious areas of family law.Footnote 48 Failure to comply with disclosure obligations can put significant pressure on the family justice system. It may also discourage parents from reaching agreements through family dispute resolution processes, such as mediation. If income cannot be properly determined at the outset, it may also prevent families from benefiting from other family justice services such as administrative child support calculation or recalculation services.
When financial disclosure is not made, the parent seeking family support must ask a court to order that the information be provided. For example, 30% of the morning family chambers docket at the Court of Queen’s Bench of Alberta is spent on income disclosure issues in family support cases.Footnote 49 This creates significant costs for families and can overburden the family justice system, including courts—and the other parent may still not disclose their income information. In these situations, the court may impute the income of the other parent.
Although imputing income may work adequately in some situations, it is very difficult for the court to determine a fair amount of support that reflects a parent’s true ability to pay, absent complete, up-to-date income information. Imputing income may result in child support amounts that are too high, which in many situations will not be paid, or too low, which would prevent children from fully benefiting from the support of both parents.
1. Divorce Act amendments (Clauses 24-25)
Divorce Act amendments that aim to help families obtain fair and accurate family support are described below, in the “Making Canada’s family justice system more accessible and efficient” section.
2. FOAEAA amendments (Clause 46)
Bill C-78 would bring changes to help reduce poverty and limit the negative consequences of income-related disputes on the family justice system. Amendments to FOAEAA would help ensure that failure to properly disclose income information does not prevent the establishment of a fair and accurate amount of support.
Bill C-78 would amend FOAEAA to allow the federal government to release an individual’s income information, including information from tax returns, to a court for the purposes of establishing, varying or enforcing family support. The income information to be released would be listed in the regulations with the concurrence of the Minister of Finance, and important safeguards would be included in the Act (see the discussion of FOAEAA amendments in the “Privacy Protections” section below). For example, where information is released to a court pursuant to FOAEAA, Bill C-78 would require that the information be sealed and kept in a location to which the public has no access.
In the case of child support, the release of income information would help ensure that amounts reflect the parent’s true capacity to pay. It would also reduce legal costs associated with obtaining income disclosure for a parent, as well as associated use of court resources. Child support orders would be made more quickly, accurately and with less conflict and expense.
3. GAPDA amendments (Clause 101)
Under the Treasury Board of Canada Guidelines for the Processing of Garnishments, a garnishee summons enforcing a family support debt takes precedence over one enforcing a commercial debt.Footnote 50 Bill C-78 proposes amendments to GAPDA that would enshrine in legislation the principle that garnishment for family support debts be prioritized over all other debts, except for Crown debts.Footnote 51
Ensuring that garnishment applications enforcing a family support obligation are processed first promotes the economic well-being of children. The creation of a priority in favour of garnishment applications that enforce support obligations also acknowledges the importance of these obligations over other debts.
D. Making Canada's family justice system more accessible and efficient
Access to justice is a priority for the federal government, and access to family justice is a key part of this. Costs, delays and complex procedures can all create barriers to accessing the family justice system.
Bill C-78 proposes changes to federal family laws to promote the use of a wider range of services to facilitate family dispute resolution. It also proposes to streamline certain processes and improve the use of administrative services.
1. Divorce Act amendments (Clauses 1(7), 8, 14, 24-25)
a. Encouraging the use of family dispute resolution processes and other family justice services (Clauses 1(7), 8)
More and more Canadians have to resolve their family law disputes without the assistance of a lawyer. For many separating and divorcing families, it is less expensive and less time-consuming to resolve issues by agreement than through court proceedings. Also, in out-of-court dispute resolution, parties often retain more control over decisions about their lives. In cases involving children, there are particular advantages to reaching an agreement through a non-adversarial process. For example, children may benefit from seeing their parents work together.
Bill C-78 would add to existing duties for lawyers under the Divorce Act and also create duties for the parties to a proceeding under the Act. These duties would encourage the use of “family dispute resolution processes” which would include a range of options such as negotiation, mediation and collaborative law.
Although dispute resolution processes such as mediation may be preferable in some cases, they may not always be appropriate, as may be the case if there has been family violence or a significant power imbalance. As a result, the requirement to engage in dispute resolution processes would not be absolute, and would be required only “to the extent that it is appropriate to do so.”
Bill C-78 also proposes a new obligation for lawyers to inform their clients of any family justice services that may be of assistance to them.
b. Improving the administrative child support frameworks
Bill C-78 would not change the existing child support rules or child support tables set out under the Federal Child Support Guidelines, which are a regulation under the Divorce Act. The process for amending regulations is different from the process for amending the Act.
However, Bill C-78 would make family justice more accessible by making it easier for administrative services to perform some tasks currently left up to the courts. These services provide a faster, more accessible, less costly and less adversarial manner for parents to determine and update child support.
Bill C-78 would create the legislative authority for the administrative establishment of child support and improve the existing child support recalculation process. These amendments seek to ensure that children continue to benefit from the financial means of their parents after separation, through administrative services that establish and maintain accurate child support amounts.
The proposed amendments support federal poverty reduction efforts by helping families obtain fair and accurate family support.
i. Administrative child support recalculation services (Clause 25)
Section 25.1 of the Divorce Act allows provinces and territories to enter into an agreement with the Government of Canada to authorize a provincial child support service to recalculate child support amounts administratively in divorce cases.Footnote 52 Their role is limited to recalculating child support amounts based on complete and accurate income information provided by parents.
Bill C-78 proposes a number of improvements to address operational challenges with the current recalculation framework. Bill C-78 would help provincial and territorial child support recalculation services perform more efficiently and effectively by allowing for more flexibility in their operations. The proposed amendments would
- allow recalculation to be performed at the request of either or both former spouses rather than only at “regular intervals” (for example, if there is a job loss during a year)
- provide for rules allowing for the deeming of income by recalculation services if a spouse refuses to disclose their income information
- allow for the recalculation of an interim order
- allow a provincial recalculation service to apply the same rules to an order made under the Divorce Act as would apply to a support order made under provincial law
ii. Administrative child support calculation services (Clause 24)
Under the current Divorce Act, only a court can determine the initial child support amount in a child support order. Bill C-78 would permit a province to enter into an agreement with the Government of Canada to authorize a provincial child support service to establish child support amounts administratively under the Divorce Act.
The proposed framework would apply where a divorce proceeding has been initiated and would use the applicable child support guidelines to establish child support amounts in a child support decision. If either or both spouses disagree with the amount of child support established by the provincial child support service, the proposed framework would permit either party to apply for an initial child support order under the Divorce Act.
The proposed legislative framework would ensure that the amount established in a child support decision has legal effect throughout Canada. The enforceability of the decision would be the same as a child support order. This proposed framework would be faster and less costly than applying to a court for a support order.
c. Streamlining interjurisdictional processes for establishing and varying support (Clause 14)
The current interjurisdictional process under the Divorce Act is modeled on the former provincial Reciprocal Enforcement of Maintenance Orders (REMO) legislation. It is a two stage-process that involves two different courts. First, the court in the applicant’s jurisdiction makes a provisional order. Second, the court in the respondent’s jurisdiction confirms the order made in the first jurisdiction. The current process is limited to the variation of support orders between provinces and territories. This means that a former spouse cannot currently obtain an initial (first) support order through the interjurisdictional process. Also, former spouses living in a foreign designated jurisdiction cannot obtain or vary a Divorce Act order for support through this process. They also cannot have a foreign order recognised and enforced under the current process. These limitations cause challenges for families living abroad.
Today all provinces and territories (except Québec) have interjurisdictional support orders legislation (referred to as “ISO Acts”) Footnote 53 which has replaced the REMO approach with a streamlined process. Bill C-78 would introduce a similar streamlined process by eliminating the first-stage hearing and introducing a new summary application procedure. It would also broaden the scope of the current interjurisdictional process by allowing former spouses to obtain or vary a support order under the Divorce Act when the parties reside in different provinces or when the parties live in a province and a designated jurisdiction.Footnote 54 This process would be easier and less costly for families living in different provinces and territories or in another country. It would also ensure consistency between interjurisdictional proceedings, whether they are conducted under provincial interjurisdictional legislation or the Divorce Act.
Finally, Bill C-78 would also allow for the recognition of a support order made in a foreign designated jurisdiction in specific circumstances.
i. Interjurisdictional proceedings involving provinces or involving a province and a foreign designated jurisdiction
Bill C-78 would allow a former spouse to make an application through a “designated authority” - an administrative authority (as opposed to directly through a court). The application could be for an initial court order for support or for a variation of an existing support order. It could also be to request to have the amount of child support calculated or recalculated by a child support service in an interjurisdictional context.
The basic process would be as follows:
- the former spouse seeking relief would submit an application to the designated authority in their own province or country (if they live in a designated foreign jurisdiction)
- That designated authority would review the application and make sure it is complete. They would then send it to the designated authority in the respondent’s province
- The designated authority in the respondent’s province would then send the application to either a court in that jurisdiction or to a child support service, if there is such a service in that province
- The respondent would then be served with the application along with a notice of where to appear and what information and documents to provide
- Based on the information from both the applicant and the respondent, either a court or a child support service in the respondent’s jurisdiction would make a decision
ii. Recognition of foreign decisions
Currently, there is no process under federal family laws to recognize foreign support orders that have the effect of varying a Divorce Act order. The need for such recognition could occur where a spouse moves to a new jurisdiction, and that new jurisdiction makes an order for a different support amount than that provided for in the Divorce Act order.
Bill C-78 would allow for the recognition of a support order made in a foreign designated jurisdiction in specific circumstances.Footnote 55 The process for registering a foreign order for recognition would be determined under provincial law, including the grounds for objecting to the registration of the order. The order would have legal effect throughout Canada and this would facilitate enforcement.
2. FOAEAA amendments (Clauses 45-46, 51, 54, 57)
a. Amendments related to provincial and territorial recalculation services (Clause 46)
Bill C-78 would amend FOAEAA to allow for the disclosure of income information, including information from tax returns, to provincial and territorial recalculation services. This would reduce costs to parents and the court system. Without access to a parent’s recent income information, recalculation services cannot accurately recalculate support.
Information-sharing agreements with provinces and territories would be updated to ensure that income information released to recalculation services is protected.
b. Amendments related to provincial and territorial maintenance enforcement programs (Clause 46)
Each province and territory has established an enforcement service, referred to as a Maintenance Enforcement Program (MEP), which has legislative authority to register, collect and enforce family support orders or agreements for the benefit of the family support recipient. Provincial and territorial legislation outlines the requirements of a support agreement before it can be registered and considered enforceable by a MEP. In some provinces and territories, when a support order is made, it is automatically enrolled with the MEP, but the recipient can ask to have the order removed from the program. In other provinces and territories, parties have the option to enroll with the MEP.
Existing enforcement tools are ineffective against a growing number of support payors who have learned to hide their assets inside Canada. Information about certain assets, which may be detailed in federal tax slips, is currently inaccessible to MEPs. As a result, MEPs are unable to locate a support payor’s assets in over 50% of their collective cases even if they have the payor’s address and employer name.
Bill C-78 would increase MEPs’ access to federal information, including the Social Insurance Number (SIN), to assist in their enforcement actions on behalf of family support recipients, mostly in relation to child support. The SIN would be identified in the FOAEAA regulations as information that can be searched for and released to a MEP. Locating support payors as quickly as possible lessens the financial hardship for support recipients and children. A validated SIN from the Social Insurance Number Register would help MEPs enforce more difficult cases and minimize risks of undertaking enforcement actions against the wrong individual.
c. Amendments related to interjurisdictional support cases (Clause 46)
Bill C-78 would amend FOAEAA to permit provincial and territorial designated authorities to apply for and receive information to process interjurisdictional cases. Federal, provincial and territorial Central Authorities under certain designated family law conventions would also be able to apply for and receive address information to assist in international cases to locate debtors, children and parents.Footnote 56
d. Amendments related to peace officers investigating child abductions (Clause 46)
FOAEAA currently requires a peace officer investigating a child abduction under section 282 or 283 of the Criminal Code to lay a charge before applying for information. FOAEAA permits the release of the address of the person who is believed to have taken a child with them, as well as the release of the name and address of that person’s employer, the address of a child who has been taken and the name and address of their employer, if any. FOAEAA applications by peace officers have rarely been made to date because the current process is perceived to be too slow and cumbersome.
When dealing with a child abduction, time is of the essence. Police should have access to tracing information as soon as possible. Furthermore, in some situations, the only concern is finding the child. Laying a charge may be premature or wholly inappropriate, for example, in some cases involving family violence. Bill C-78 would therefore amend FOAEAA to replace this requirement with a more robust affidavit requirement explicitly stating that police have reasonable grounds to believe that a criminal offence has been committed, and that the information disclosed will be used to assist in the investigation of the offence. Permitting police to seek tracing assistance prior to laying a charge should make the tracing service more accessible to police officers and thus a more effective tool.
e. Privacy Protections (Clauses 45-46)
FOAEAA currently provides safeguards to protect information released under the Act. For example, information-sharing agreements between the provinces and territories and the Government of Canada must safeguard information released under the Act. These agreements would have to be updated as a consequence of the many changes Bill C-78 proposes in respect of the release of information. Bill C-78 would amend FOAEAA to ensure that provincial entities that will now have access to information are subject to such agreements before they can apply for and receive information under FOAEAA. Bill C-78 would also amend FOAEAA to require information-sharing agreements between the Government of Canada and any specific police force in Canada seeking to make use of the Act.Footnote 57
Since provinces and territories cannot enter into information-sharing agreements with the Government of Canada on behalf of courts, Bill C-78 would amend FOAEAA to require that information released to a court be sealed and kept in a location to which the public would not have access. The court could then, for the purpose for which the information was requested, disclose the information to a person or official that the court considers appropriate and make any order to protect the confidentiality of the information.
f. Expanding the FOAEAA garnishment program (Clauses 51, 54 and 57)
FOAEAA currently permits the garnishment of designated federal monies, such as income tax refunds, to satisfy unpaid family support obligations.
Through their enforcement efforts, federal, provincial and territorial governments disburse about $2 billion annually to Canadian families to satisfy outstanding support debts. At the federal level, in 2017-18 about $185 million was garnisheed under FOAEAA for families and children. These federal support enforcement efforts alone resulted in the distribution of, on average, close to $2,000 per family on behalf of which funds were garnisheed for about 100,000 families.
Bill C-78 would amend FOAEAA to improve the garnishment process. For example, the federal Crown would be bound by a garnishee summons for 12 years instead of five, to better reflect the average length of time a file is enrolled for enforcement in Canada. This would improve the operational efficiency of the FOAEAA garnishment program and would reduce the need for MEPs to renew their garnishment applications.
Bill C-78 would amend FOAEAA to allow for garnishment of court-ordered expenses incurred as a result of the denial of or refusal to exercise parenting time, custody, access or contact. It would also allow for garnishment where there is non-payment of expenses related to the exercise of parenting time, custody or access due to a child’s relocation. The provisions in Bill C‑78 would help ensure that parents can be compensated for expenses they incur in these situations.
The effectiveness of the FOAEAA garnishment provisions is significantly reduced when a support debtor does not file a tax return, where the refund could have been garnisheed to satisfy their unpaid support obligation. Bill C-78 would amend FOAEAA to create a mechanism whereby the Minister of National Revenue could demand that a debtor who is subject to a FOAEAA garnishment file a tax return.
Bill C-78 would amend FOAEAA in various other ways to help create greater operational efficiency. For example, Bill C-78 would eliminate the requirement for MEPs to submit an affidavit for tracing applications and licence denial applications. The safeguards provided by the affidavit can be addressed through other means for MEPs, such as the requirement that the applicant attest to the truthfulness of the application. In addition, MEPs have established rigorous internal safeguards since FOAEAA was enacted in the mid-1980s.
3. GAPDA amendments (Clauses 85, 87, 95, 96(2), 105(1), 105(3), 106(2), 115(3), 115(5))
Bill C-78 proposes amendments to GAPDA to increase the effectiveness of the current processes under which federal salaries are garnisheed and federal pension benefits diverted.
Amendments would extend the period within which a garnishee summons must be served on the federal Crown. This would provide a person who is owed money and who submits a garnishment application additional time to take corrective actions where procedural errors are made, such as serving documents at the wrong address. The garnishment regime would also be amended to allow, where possible, the earlier interception of salary so that support recipients can obtain the support to which they are entitled faster.
Bill C-78 would also allow MEPs to apply for pension diversion on behalf of support recipients, without obtaining a certified copy of the support order. Eliminating the need to obtain a certified copy of the order would save support recipients time and costs associated with obtaining certification.
At present, only arrears that are set out in a court order can be enforced through pension diversion. Bill C-78 would allow MEPs to recover arrears with a statement of arrears that details the arrears owing. This would alleviate the burden on the support recipient to go back to court to obtain a court order for any arrears that have accrued, thus improving the efficiency of the diversion regime and allowing support recipients to collect the support they are owed faster. It would also allow MEPs to adjust the arrears owing if moneys are collected through other means.
E. International conventions
On May 23, 2017, Canada signed two international family law Conventions: the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (2007 Convention) and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Convention).
Although Canada has signed these Conventions, it is not yet a party to either. As a next step for Canada to become a party, Parliament would have to amend federal family laws to align them with the Conventions.
Bill C-78 is federal implementing legislation for the 1996 Convention and the 2007 Convention. It would make necessary amendments to the Divorce Act and the FOAEAA. Both Conventions have rules for federal States, like Canada, so that the Conventions can be implemented incrementally in different territorial units. In Canada, the territorial units would be the provinces and territories. Upon ratification, Canada would declare that the Convention will apply in those provinces and territories that have amended their laws to be consistent with the Convention and have asked the federal government to have the Convention apply to them. If additional provinces and territories do the same, Canada would make additional declarations to extend the application of the Convention to them.
Bill C-78 would give “force of law” to the 1996 Convention and the 2007 Convention under the Divorce Act. This means that the Conventions would become part of the law of Canada. Because of the constitutional division of powers, however, the Conventions would only be given force of law in relation to federal jurisdiction. Bill C-78 also provides that the 1996 Convention and the 2007 Convention would override federal laws if they were in conflict with one another.
1. 2007 Convention (Clause 30)
Canada is currently not party to any international convention concerning the enforcement of family support. In Canada, the international recovery of family support is facilitated by reciprocal arrangements with other countries. Provinces and territories have established arrangements pursuant to their interjurisdictional support orders legislation under which certain foreign States have been designated as “reciprocating jurisdictions” or, in the province of Québec, by designation pursuant to An Act respecting reciprocal enforcement of maintenance orders.
Where there is no reciprocity arrangement, the only way for most Canadians to have a support order enforced in another country is to hire a lawyer in that country and go to court. Most Canadians cannot afford to hire a foreign lawyer.
The 2007 Convention provides the legal framework for cross-border recognition and enforcement, establishment and modification of support orders and agreements. The Convention establishes an international system for administrative cooperation by requiring that a Central Authority be designated for each Contracting State to implement Convention obligations. In federal States such as Canada, the 2007 Convention allows for Central Authorities to also be designated for each territorial unit to which the 2007 Convention has been extended (Article 4(2) of the Convention).
The 2007 Convention applies to child support obligations for children under the age of 21, regardless of the marital status of the parents.Footnote 58 The Convention also covers recognition and enforcement of spousal support obligations where the spousal support claim is made with a claim for child support. The scope of the Convention is outlined in Article 2(1).
The 2007 Convention provisions would apply only if one of the spouses lived in a Contracting Party and the other spouse were habitually resident in a province that has implemented the 2007 Convention.
a. Benefits of becoming a party to the Convention
Ratification of the 2007 Convention would increase the number of countries with which Canadian jurisdictions have reciprocity, which would result in more family support flowing to Canadian families and children. Ratification of the 2007 Convention would make it easier to have Canadian child and spousal support orders recognized and enforced across international borders. It would also provide a means for Canadians to establish and vary a child support order in a foreign country.
The 2007 Convention may also provide added value to current reciprocity arrangements. The Convention does not prevent the application of reciprocity arrangements if the arrangements provide for a broader base of recognition and enforcement, a simpler procedure or more beneficial legal assistance.
Becoming a party to the 2007 Convention would contribute to Bill C-78’s objectives of reducing child poverty and increasing the efficiency of the family justice system.
b. Role of the Central Authority
Under the Convention, Canada could designate a Federal Central Authority as well as provincial and territorial Central Authorities. Provincial and territorial Central Authorities would be primarily responsible for implementing Convention obligations. Upon receiving an application from a Central Authority located in a Contracting State, a provincial or territorial Central Authority would be required to provide assistance to a former spouse residing in that State. The provincial or territorial Central Authority would then send the application to the appropriate competent authority in its jurisdiction. The competent authority could either be a court, which would generally be the court closest to where the former spouse resides, or a provincial child support service if that service is available in the receiving jurisdiction. The Canadian Federal Central Authority would assist foreign Central Authorities in locating parties in Canada and with the transmission of applications to the appropriate provincial or territorial Central Authority (Articles 5 and 6).
c. Direct request to Court
Under the 2007 Convention, direct requests to courts would be available to foreign creditors seeking to have their support orders recognized or recognized and enforced in a province or territory to which the Convention has been extended. Foreign debtors would also be able to make direct requests to have decisions having the effect of suspending or limiting a support order either recognized or recognized and enforced in a province or territory to which the Convention has been extended.
Under the provisions relating to the 2007 Convention, Bill C-78 does not specifically provide the means for parties to make direct requests for establishment and variation of support orders as former spouses may use the existing process set out in sections 15.1 (child support), 15.2 (spousal support) or 17 (variation of orders) of the Divorce Act (Article 37).
d. Stand-alone spousal support claims
As noted, the 2007 Convention covers recognition and enforcement of spousal support obligations through a Central Authority only if the spousal claim is made with a claim for child support. Applicants wishing to establish stand-alone spousal support claims internationally would have to make a request to a court without the assistance of a Central Authority.
Under the 2007 Convention, Contracting States may, by means of declaration, extend all or parts of the Convention to other types of family support such as spousal support only, or support for vulnerable persons (Article 2(3)).Therefore Canada could, after receiving a request from a province or territory to do so, declare on behalf of that province or territory that the scope of the 2007 Convention is extended to other types of family maintenance not covered by the core scope of the 2007 Convention, including applications for spousal support only. Bill C-78 would provide authority under the Divorce Act for provincial or territorial Central Authorities to assist with these applications.
2. 1996 Convention (Clause 31)
Canada is currently not party to a multilateral private law instrument relating to parenting (custody and access) matters.Footnote 59 Because of this, Canada and another country might apply different jurisdictional rules to the same case, with the Canadian court and a court in another country potentially making conflicting decisions. Moreover, many foreign countries will not recognize and enforce Canadian custody orders. As Canada is not party to a multilateral private law instrument, it cannot be part of existing formal multilateral networks to promote cooperation in cross-border children’s matters.
The 1996 Convention only applies among “Contracting States.” The 1996 Convention sets out rules to clarify issues such as which State’s courts can make decisions about parenting arrangements for a child and which laws should apply when a child lives in one State but also has close connections to one or more other States.
It also sets out rules for the recognition and enforcement in one Contracting State of orders made in a different Contracting State. The Convention also makes it easier for authorities in different Contracting States to communicate and cooperate with each other about many cross-border issues involving children.
In addition to parenting matters, the 1996 Convention applies to other issues including matters related more broadly to the “protection of children”, such as child protection, and the administration, conservation and disposition of children’s property. However, Bill C-78 only relates to parenting matters, as these are the matters addressed in the 1996 Convention that fall within federal jurisdiction.
a. Benefits of becoming a party
The 1996 Convention would facilitate the recognition and enforcement of Canadian parenting orders in other countries that are also party to the Convention, creating greater legal certainty. This would provide better assurances to families who travel or relocate to another Contracting State that their Canadian order will be respected. This could also make it easier to return a child to Canada in parental child abduction cases. It could also reduce costs for families by reducing the need to re-litigate the same issues in another Contracting State. In 2014, the Standing Senate Committee on Human Rights recognised the benefits of joining the 1996 Convention, both as a complement to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Hague Abduction Convention) and as a tool to help resolve cross-border parenting disputes.Footnote 60
The 1996 Convention could lead to more effective communication and cooperation between authorities in Canada and in other countries about many other child-related issues. The potential benefits of the Convention continue to grow as more countries become parties. The 1996 Convention now applies in over 40 countries, including many European countries.
b. Implementation through Bill C-78
Bill C-78 would give the 1996 Convention force of law which, from a legal perspective, would be sufficient to implement the Convention federally. However, Bill C-78 includes other amendments to explain how some of the rules in the 1996 Convention are to be applied specifically in the Divorce Act context. The provisions of the Divorce Act dealing with the Convention would only apply to the provinces and territories to which the application of the Convention has been extended. In addition, consistent with the Convention, they would only apply to children under the age of 18.
c. Jurisdictional rules
The basic jurisdictional rule in the 1996 Convention is that the authorities of the Contracting State where the child is habitually resident have jurisdiction to make decisions related to the protection of the child (Article 5 of the Convention). Bill C-78 would reflect this rule by providing that a court otherwise having jurisdiction under the Divorce Act cannot make a decision about a child who is habitually resident in another Contracting State, unless specified exceptions provided by the Convention are met.
The exceptions allowing a Canadian court to take jurisdiction where a child is habitually resident in another Contracting State are as follows:
- the child is present in Canada and the child is a refugee, internationally displaced or their habitual residence cannot be determined (Article 6)
- there is a divorce proceeding in the province and other mandatory criteria are met. These criteria are 1) at least one spouse has parental responsibility for the child, 2) anyone with parental responsibility consents to the court taking jurisdiction, and 3) the court determines that it is in the best interests of the child to take jurisdiction (Article 10)
- the court has requested or been requested to assume jurisdiction under the Convention’s transfer provisions. This transfer can only occur where the competent authorities in both Contracting States agree that the transfer would be in the child’s best interests. The cases where jurisdiction is most likely to be transferred to a Canadian court would be those where there is a divorce proceeding pending in a province, but where the conditions set out in proposed section 30.7 of the Divorce Act have not been met, or where the child has a substantial connection to the province (Articles 8 and 9)
- there is an urgent situation (Article 11)
The jurisdictional provisions would also provide that, if a child has become habitually resident in a province as a result of a wrongful removal or retention, a court in that province may only take jurisdiction once specific criteria set out in the 1996 Convention have been met (Article 7). This provision would help discourage international parental child abduction by denying a jurisdictional advantage to a person who has abducted a child. It is complementary to the Hague Abduction Convention, to which Canada is a party.
A court in a province having jurisdiction under the Divorce Act and in accordance with the 1996 Convention may seek or accept to transfer jurisdiction to the competent authority of another Contracting State in certain circumstances set out in the 1996 Convention. Both authorities must agree that the transfer would be in the best interests of the child (Articles 8 and 9).
Bill C-78 would create a new jurisdictional provision for cases where a child is habitually resident outside Canada, but where the 1996 Convention does not apply. A court could only take jurisdiction in such cases in “exceptional circumstances.”
d. Recognition and enforcement
While foreign parenting orders are generally recognized under provincial and territorial laws, there is one situation in which such orders must be recognized under the Divorce Act. This is where the foreign parenting order has the effect of modifying a previous parenting or contact order made under the Divorce Act. It must be recognized under the Divorce Act so that it has the effect of overriding the original Divorce Act order.
Article 23 provides for the recognition by “operation of law” in Contracting States of measures (decisions) taken by other Contracting States. This means that the decision would have legal effect in a province without the need for a court application. Article 24 provides, however, that any interested person may ask a court to decide on the recognition or non-recognition of a measure taken by a Contracting State under the 1996 Convention. Bill C-78 would specify that this application may be made to any court in a province if there is a sufficient connection between the matter and the province. Article 23(2) lists several grounds for non-recognition of a decision, for example if a person who claims their parental responsibility is infringed by the decision was not given an opportunity to be heard.Footnote 61
Under Bill C-78, where a foreign decision is recognized by operation of law, that decision would only be valid in the provinces and territories where the Convention applies (Article 23). This would provide for consistency, as these provinces and territories would also recognize decisions of Contracting States by operation of law. In cases where a foreign decision is recognized by the court of a province having a sufficient connection with the matter, it would have legal effect across Canada, consistent with the current approach under subsection 20(2) of the Divorce Act (Article 24).
While a foreign decision may be recognized by operation of law, if an individual wishes to have the foreign decision enforced, they must take the extra step of either registering the decision with a court in the province where enforcement is needed or seeking a declaration from that court that the decision is enforceable (Article 26). Provinces and territories would determine the appropriate procedure for their jurisdiction. The registration or declaration could be refused on the same grounds as could the recognition of a foreign decision meaning the grounds under Article 23(2). Bill C-78 would clarify this in the context of the Divorce Act and provide that a foreign decision would be enforced in the same way as an order of a court in the province.
Bill C-78 would provide a basis for the recognition of foreign decisions modifying a parenting or contact order made under the Divorce Act in situations where the 1996 Convention does not apply. The grounds for non-recognition would be similar to those found in the 1996 Convention. Once recognized, the decision would be enforced as an order of a court in a province.
F. Miscellaneous amendments
Bill C-78 proposes a number of additional changes. Some minor changes would ensure consistency between the French and the English versions of all three Acts and provide for gender-neutral terminology.
1. Divorce Act amendments
Bill C-78 would amend the Divorce Act’s current jurisdictional rules by, for example, replacing the term “ordinarily resident” with “habitually resident” (Clause 35) and changing the jurisdictional rules relating to parenting orders (Clauses 2-7). As discussed throughout this paper, Bill C-78 would propose new obligations for parties under the Divorce Act (Clause 8). One would explicitly require parties to comply with court orders until they are no longer in effect. Others include the requirement to shield children from conflict arising from divorce and the duty to provide complete, accurate and up-to-date information required under the Act (Clause 8).
2. FOAEAA amendments
Bill C-78 would also amend Part II of FOAEAA by providing authority to set out in regulations the periods and circumstances where a garnishee summons will no longer be effective, as well as providing authority to set out in regulations how multiple garnishee summonses relating to the same debtor are to be honoured (Clauses 55 and 66).
Part III of FOAEAA would also be amended to permit the Minister of Justice and the Ministers responsible for the denial or suspension of federal licences to, subject to the regulations, search any of the information banks that may be searched under Part I of FOAEAA for the purposes of confirming the identity of a debtor named in an application for federal licence denial (Clause 75).
3. GAPDA amendments
Bill C-78 would amend GAPDA to allow for periods and circumstances leading to the termination of garnishment to be set out in regulations (Clause 85). For example, garnishment of wages could be terminated after a specified period has elapsed since an employee has retired and no further wages are payable. Another amendment would define the term “Parliamentary entity” for Part I of the Act to allow the removal of the names of parliamentary entities from applicable provisions (Clause 82(2)). Using the defined term would improve the readability of those provisions without changing the substance of the text.
In Part II of GAPDA, if a person entitled to a deferred annuity under the Canadian Forces Superannuation Act or the Reserve Force Pension Plan Regulations is not paying their support obligation, Bill C-78 would allow a support creditor to ask the court to make an order deeming the person to have opted for an annual allowance (Clause 107). Once the payment of pension benefits to the person began, the diversion could proceed.
G. Coming into force
1. Royal Assent (No applicable clause)
Bill C-78 contains a small number of technical Divorce Act provisions that would come into force immediately upon Royal Assent. These include provisions relating to the authority for ministerial activities, such as research and regulation-making authorities. Certain regulations would need to come into force at the same time as provisions of Bill C-78, such as those related to administrative calculation and recalculation. Changes to the Federal Child Support Guidelines would also come into force at the same time to reflect the changes in parenting terminology.
Most of the GAPDA amendments and several of the FOAEAA amendments proposed in Bill C-78 would come into force upon Royal Assent. These amendments would serve to improve the efficiency of service delivery.
2. Order in Council (Clause 126)
Most of the Divorce Act provisions would come into force by Order in Council. Most of the proposed amendments to the Act would require changes to provincial rules of court, development of public legal education and information materials and professional training. Bringing these provisions into force by Order in Council would give the Government of Canada and the provinces and territories time to complete the required changes.
Most of the FOAEAA amendments and a few of the GAPDA amendments would also come into force by Order in Council. These amendments could not come into force until the regulations that support FOAEAA and GAPDA are amended and technical and operational changes required to federal, provincial and territorial systems are completed.
Finally, the coming into force of each international Convention depends on at least one province or territory having passed implementing legislation and indicating that it wishes to be bound by that Convention. As a result, each Convention would come into force by Order in Council after this occurs.
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