Significant Changes to the Divorce Act Came Into Force on March 1, 2021

Mark Feigenbaum

Important changes to the Divorce Act came into force on March 1, 2021. 

The Federal Divorce Act applies to married couples who are divorcing, while provincial or territorial legislation applies to unmarried or common-law couples andmarried couples who are separated but not divorcing.

On June 21, 2019, Royal Assent was given to Bill C-78 to amend Canada’s federal family laws related to divorce, parenting and enforcement of family obligations. Due to the extraordinary circumstances related to the COVID-19 pandemic, the Government of Canada deferred the coming into force date of the changes to the Divorce Act to March 1, 2021. 

It should be noted that provinces and territories are responsible for the administration of justice, including the court system, where cases related to the Divorce Act and the Federal Child Support Guidelines are decided. 

Stated Purpose of the Changes

The Government of Canada has stated that the purpose of the changes to Federal family laws, which had otherwise not been substantially updated in more than 20 years, is to:

• promote the best interests of the child,
• address family violence,
• help to reduce child poverty, and
• make Canada’s family justice system more accessible and efficient.

Significant Changes

• Best Interests Criteria

The amended law sets out a list of specific factors that a court must consider when deciding what would be in a child’s best interests in the child’s particular situation. Along with the main considerations of the child’s physical, emotional and psychological safety and wellbeing, other factors include:

• the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
• the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
• the child’s views and preferences

Courts will be required to order parenting time to each parent based on the child’s best interests. The best interests criteria will help courts tailor parenting arrangements for each child’s specific situation.  

• Child-Focused Terminology

Significant changes were also made to the language used in the Divorce Act to describe parenting arrangements. Notably, the new law uses the term “parenting orders” to replace what was formerly known as orders for “custody” and “access” under the Divorce Act. 

Additionally, parenting orders now set out each parent’s “decision-making responsibilities,” which refer to making important decisions on behalf of a child, and “parenting time”, which can be shared by both parents, depending on each child’s best interests. The new wording is intended to be neutral and emphasize that both former spouses will be caring for their child when the child is with them. The Government of Canada has stated this more neutral wording is intended to remove the idea of a “winner” and a “loser” in decisions about parenting arrangements. 

• Changes of Residence

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

• Addressing Family Violence

Before the changes, the Divorce Act did not include measures for dealing with family violence, even though it can have a serious impact on children’s wellbeing. A list of factors have been added to the Divorce Act to help courts assess the seriousness of the violence and how it could affect future parenting when deciding what parenting arrangements would be in the child’s best interests. Additionally, before making parenting, contact or support orders, courts must consider any other proceedings or orders involving any of the parties. 

• Reducing Poverty 

After a divorce or separation, spouses and children are at much greater risk of living in poverty if they do not get the financial support that they are owed. The updated legislation includes measures intended to provide more tools to establish and enforce child support and lessen the need for expensive court costs. 

• Increasing Accessibility and Flexibility

Finally, a number of new measures have been put in place to help streamline administrative processes and make family justice more accessible and affordable by implementing provincial level processes to deal with child support and facilitate family dispute resolution proceedings.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.