The Divorce Act is an important piece of Federal legislation in Canada – it sets out the law regarding married parties who are looking to end their marriage and settle issues of support and parenting. The Divorce Act, in it’s current form, came into effect in 1986. After many years of consultation the Government decided that it was time to do some significant updating, and in 2019 passed Bill C-78 which will officially update the Divorce Act. The changes introduced in that Bill will come into effect on July 1, 2020. Let’s examine some of the changes that are coming and how they may impact family law.
The Federal Government released a background document and stated that one of the objectives of the updated Act is to promote the best interests of the child. The current version of the Divorce Act states that ‘the best interests of the child’ are the only criteria to be considered when making decisions about parenting. However, what ARE the best interests of the child? How do Judges and decision makers decide?
Alberta’s Family Law Act, the provincial act that can apply to parties who are not married, does have a list of considerations regarding best interests of the child at section 18. The Divorce Act does not currently have a list and courts and decision makers have long sought guidance on this issue. The updated Divorce Act will contain a hierarchy of considerations when making ‘best interests’ decisions.
First of all, the updated Divorce Act will introduce a “primary consideration” at section 16(2) which is the child’s physical, emotional and psychological safety, security and well-being.
Then, there is a ‘non-exhaustive’ list of best interests of the child criteria to provide some consistency and clarity to assist in guiding parenting, family justice professionals, lawyers and courts. The ‘non-exhaustive list’ will be known as Section 16(3) and reads as follows:
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(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 including the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things, (at section 16(4) the Act will define what, exactly, a court should take into account in considering the impact of family violence)the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and 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; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Finally, the updated Divorce Act will maintain the ‘Maximum Contact Principle’ at section 16(6). This paragraph states that a child should have as much time with each spouse as is consistent with the best interests of the child.
It is important to note that the updated Divorce Act does not create a presumption of shared parenting. No matter how the ‘maximum contact principle’ can be interpreted, the Government is very clear that shared parenting arrangement does not work for all families. The Federal Government has stated that, in most cases, parents can and should share responsibilities for their children. However, they give examples of when shared parenting wouldn’t work, such as when one parent does shift work or if there has been family violence.
To be clear, decision makers will continue to have regard only to best interests of the child. When determining the best interests of the child they will primarily consider a child’s emotional and psychological safety, security and well-being. Then, they will consider the enumerated factors at section 16(3) and ultimately make a decision that will afford the child or children as much time with each spouse as is consistent with the best interests of that child under the enumerated factors.
Settling parenting disputes in the changing landscape can be difficult. If you would like to discuss this further please contact us. Next month, we will examine the changes that are coming with regard to a parent’s ability to move or relocate with their children.
