The Divorce Act, R.S.C., 1985, C. 3 (“Divorce Act”), is the primary piece of Canadian legislation which governs the process of separation for married couples. Somewhat surprisingly, the Divorce Act has not been substantially changed in more than 30 years (it first became law in 1985).
However, a Bill was recently introduced which proposes several long-due changes to the Divorce Act. Bill C-78 (which has the formal, tongue-tying name of: “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”), which is expected to be passed into law sometime in 2019, proposes a long list of changes to the existing legislation, including:
- Giving clarity to the long-standing family law principle of the “best interests of the child” by establishing a non-exhaustive list of criteria to determine same (including the child’s needs, the child’s views and preferences, the spouses’ willingness to support the child’s relationship with the other spouse, etc.).
- Creating formal duties for parties and lawyers to encourage the use of alternative dispute resolution processes (including negotiation and mediation), rather than the Court process.
- Introducing specific measures to assist the Courts in addressing family violence by providing adjudicators with a list of factors to assess when determining the impact of family violence on litigants.
- Updating old terminology throughout the legislation, including replacing the terms “custody” and “access” with clearer and more understandable terms like “parenting” and “decision-making authority.”
- Establishing a clearer test for the possible relocation of a child.
The main stated goals of Bill C-78 are to update the existing legislation into modern times, make the family law justice system more streamlined and to promote the best interests of children.
It sounds like big changes may be ahead in Canadian family law! Stay tuned into the Vogel LLP blog for more information as this new legislation develops.