by Lindsey Camejo and Riley Nolan
The Divorce Act is about to have its most significant overhaul in over 35 years. On June 21, 2019, Bill C-78 was given Royal Assent paving the way for the introduction of the first amendments to Canada’s federal family laws on divorce, parenting and enforcement of parenting arrangements. Originally scheduled to come into force on July 1, 2020, the onset of the COVID-19 pandemic in 2020 resulted in the delay of the coming into force date of amendments to March 1, 2021. This blog post will highlight and explain some of the most significant changes to the Divorce Act including important changes to terminology; best interests of the child; family violence; and relocation with a child.
The federal Divorce Act applies to married couples who are divorcing. In Manitoba, The Family Maintenance Act applies to common-law partners as well as married couples choosing to seek relief under that provincial legislation.
DEFINITIONS / TERMINOLOGY
Under the current Divorce Act, orders of “custody” and “access” are made by the Court. The amendments to the Act will bring about a change in terminology to reflect more child-focused terminology of “parenting orders”, “parenting time”, and “decision-making responsibilities”. The intention behind this new wording is to provide for more neutral language which emphasizes the role of both former spouses in caring for their child when the child is with them. With more neutral language, the hope is that family law proceedings will become less adversarial when it comes to decisions about a child’s living arrangements.
The terms “custody” and “custody order”,common in the world of family law and to those parties going through family proceedings are out under the new Divorce Act amendments.
The Act now speaks about “parenting time”, “parenting order”, and “decision-making responsibility”. Parenting time means the time a child of the marriage spends in the care of a person, as defined in subsection 16.1(1) of the Act, whether or not the child is physically with that person during the entire time (for example, while the child is at school or daycare). A parenting order is an order made on the issues of parenting time and decision-making responsibility. Parenting order replaced the former use of the term custody order. Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities.
With the changes to the terminology contained within the Act it will be important that counsel practicing in this area ensure that any court pleadings which may come before the Court following the coming into force of these amendments to the Act reflect the use of the new language. Our Family Department at Tapper Cuddy LLP has begun ensuring that the proper terminology is contained within all of our Divorce Act pleadings.
BEST INTERESTS OF THE CHILD
When the Court is making a Parenting Order under the new Divorce Act, they are directed to only consider the best interests of the children. To that end, the Divorce Act will now contain a list of factors to assist the Court with determining what is in the best interests of a child (section 16(3)).
These factors are:
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons;
- Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- The history of care of the child;
- The child’s views and preferences;
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- Any plans for the child’s care;
- 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;
- The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate;
- Any family violence; and
- Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
The changes to the Divorce Act also include the new primary consideration which states that the court must give primary consideration to the child’s safety, security and well-being when considering the “best interests factors”.
It is important to note that with the exception of the primary consideration, all other factors are weighed equally and no single one is determinative. The list of factors is also non-exhaustive, which means that other factors can and may be considered where appropriate in any given case.
The addition of this list of factors to the Divorce Act is consistent with Manitoba’s provincial legislation; The Family Maintenance Act, which already contains a list of (very similar) criteria to assist the Court in determining what is in the best interests of a child.
One of the goals of the revisions to the Divorce Act is to introduce measures to assist the courts in addressing family violence.
The Divorce Act now defines family violence and also provides the courts with guidance on how to consider the impact of family violence. For the purposes of the Divorce Act, family violence is 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 also includes direct or indirect exposure to such conduct. This is a significant development in that it recognizes the impact that exposure to domestic violence can have on a child, even if the child is not the target of the violence.
This definition of family violence also specifically recognizes that conduct may be considered family violence even if it would not necessarily constitute a criminal offence. The definition also contains a non-exhaustive list of types of conduct that constitute family violence. These include the more obvious examples of violence, such as physical and sexual abuse, or the killing of an animal. Importantly, the list also includes lesser recognized forms of family violence such as psychological abuse, financial abuse and threats to kill or harm loved ones or to damage property. This is an important development in acknowledging the nuances of family violence and that family violence does not look the same for each family.
The Divorce Act will provide guidance to the courts on how to consider the impact of family violence. The court is directed to take into account the following factors:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
The amendments to the Act bring a very significant change with the inclusion of provisions meant to address issues whereby one parent desires to relocate with a child following a divorce. Up to this point the law around relocation in Manitoba has been found solely in the case law developed by courts here and across the country. Mobility issues can be some of the most contested (and therefore expensive) family law matters. It is hoped that the introduction of a legislated framework on this issue will assist in providing parents (both those who may wish to relocate, as well as those opposed) with greater certainty and potentially less conflict as a result.
The amendments to the Act now include a new requirement that the parent seeking to relocate with a child provide at least 60 days’ notice to the other parent. In the event of safety issues, for instance, where there is a history of family violence, the court will have the discretion to modify the otherwise mandatory notice requirements. This notice requirement will allow the parties the chance to discuss, negotiate, or even formally object in court to the requested relocation.
The notice of relocation provided must include, the expected date of relocation; the address of the new place of residence and contact information for the parent and/or child; a proposal as to how parenting time, decision-making responsibility or contact, can continue to be exercised post-relocation; and any other information that may be prescribed by regulations under the Act. Again, the contents of this notice are to assist with providing the parties with enough information (as a start) to discuss and negotiate the matter.
The party receiving notice of the relocation has 30 days under the Act to respond with an objection if they in fact object. Their objection must be provided in a prescribed form, including the reasons for the objection, their views on the proposal set out for the exercise of parenting time, decision-making responsibility or contact, contained in the relocation notice.
The mobility provisions of the Act also provide a discrete list of factors for the court to take into consideration on the child’s best interests when making the decision on whether or not to approve a relocation. This list of factors includes all of the factors referred to in the new Best Interests factors in section 16 and described in the preceding section of this blog post, as well as several additional relocation specific factors.
Amongst those relocation specific factors is (a) the reasons for the relocation. The inclusion of this factor is a rather significant development in the area of family law as the prior law on relocation as set out by the Supreme Court of Canada in the decision of Gordon v Goertz, 1996 CanLII 191 (SCC)explicitly states that this question is off-limits to the Court in making a determination on relocation. The inclusion of the reasons for the relocation as a factor in the determination of the child’s the best interests recognizes that the best interests of a child may be, and in fact often is, directly impacted by the reasons for the relocation.
The additional relocation specific best interest factors are (b) the impact of the relocation on the child; (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement; (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration among other things, the location of the new place of residence and travel expenses; and (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
The Act includes a provision prohibiting the court from considering what has been referred to as the “double-bind” question in relocation cases, that is, if the relocation was prohibited by the court, would the parent still making the request relocate without the child, or instead forgo their relocation. A response that the parent would not relocate without the child would make the decision easy for the judge who may decide the move is not important enough to the parent to warrant allowing it. A response that the parent would relocate with the child could be construed as suggesting the parent does not care enough about their child in the first place.
Where the parties’ parenting arrangement is that the child spends substantially equal time with both parents, the parent requesting relocation bears the burden of proving that the relocation would be in the best interests of the child. Where the parenting arrangement provides that the parent with the vast majority of parenting time is making the request to relocate, the parent opposing relocation bears the onus of proving the move would be contrary to the child’s best interests. This allocation of burdens of proof recognizes that a child’s best interests are most often served where they can maintain a connection to their primary caregiver – where such an arrangement exists.
Where parenting arrangements are not set out in a court or order or agreement, both parents must demonstrate to the court why the proposed relocation is or is not in the best interests of the child.
For further information about the Divorce Act and its changes, please feel free to consult with our Family Law Department at Tapper Cuddy LLP.