In May 2018 Bill C-78 Act to Amend the Divorce Act as well as the Family Orders and Agreements Enforcement Assistance Act and Garnishment, Attachment and Pension Diversion Act and make consequential amendments to another Act was introduced to Parliament. This Bill when enacted will amend the parenting provisions of the Divorce Act, which applies to married partners who are divorcing. The coming into force date for the amendments is set for July 1, 2020, notwithstanding the recent impact of the COVID-19 pandemic.
The amended provisions of the Divorce Act will no longer refer to the terminology of "custody" and "access", as both terms are identified as being archaic and proprietary. Instead the new terms used will be "parenting time" and "parental decision-making" that will be incorporated into Parenting Plans. It appears that the shift is to steer parents away from the focus of winning and losing, as often was the case when parents fought over custody vs. access, to a more child focused problem solving approach for parents.
A proposal was made to include a "presumption of equal shared parenting" to the changes being made to the Act, but this was rejected during Committee hearings. It was decided that the presumption of equal shared parenting may not be in the child's best interests in some circumstances. Instead the legislative change provides that the Court, in deciding parenting time, shall consider that the child should have as much time with each parent as is consistent with the child's best interests.
It is hoped that the more child focused terminology of "parenting time" and "parental decision-making" will encourage parents to settle disputes outside Court. To that end the proposed changes to the legislation also specifically promote the use of alternative dispute resolution when possible, as it sets out a positive duty for divorcing parents to protect children from conflict that can arise during litigation. The legislation does, however, recognize that alternative dispute resolution is not appropriate in all cases, for example in cases involving family violence or where there is a power imbalance between the parties. Parents are encouraged to recognize the importance of supporting the child's relationship with the other parent.
Family violence and its impact on a parent's ability to meet the needs of a child and whether the cooperation of the parent who engaged in violent behavior is required to make decisions related to the child is a mandatory consideration for the Court to consider when making parenting orders under the new Act.
The changes to the Act provides a framework on issues related to when a parent plans to relocate with a child, including notice terms, provision of new address and a proposal by the moving parent for how the non-moving parent will exercise access after the proposed move, etc.
These changes to the Divorce Act means that our provincial legislation, for example the Children's Law Reform Act, the Family Law Act, etc., will have to be amended where necessary so the provincial legislation aligns with the new terms in the the Divorce Act, to ensure that unmarried parents receive the same treatment under the law.
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