By: Mike Marra
Much has changed in our society in the past thirty years. The
Divorce Act was last amended in 1986. After extensive consultation the Federal government has proclaimed substantial changes to the Act which come into force on July 1, 2020.
The focus of the changes are much heralded updates to provisions regarding children and family violence.
The new terminology mandated by the Act will be unfamiliar and perhaps confusing to estate practitioners and indeed the public as a whole.
The information in this article is largely extracted from Department of Justice Reports and Publications.*
Perhaps the most fundamental change occasioned by the new Act is the change in terminology from the historic children as property concepts of custody and access.
Custody orders are now "parenting orders "which will set out "parenting time" and "decision-making responsibility." Parenting time is the time during which someone in the role of a parent is responsible for a child. This includes time when the child is not physically in the care of that person, such as when the child is at school or in daycare.
"Decision-making responsibility" refers to the responsibility to make significant decisions about a child, such as decisions about a child's health and education. Both spouses, a parent, and any person currently in or seeking a parental role in the life of a child could apply for a parenting order. Non-spouses would have to seek leave of the court, as is the case currently for custody orders under the Divorce Act.
The 2019 amendments codify some existing practices of family courts under the Divorce Act and introduce some new concepts.
The 2019 changes to the Divorce Act include a provision stating that parenting time may be allocated according to a schedule. This may be helpful in situations of high conflict, where a flexible schedule may lead to more frequent disputes. The amendments also indicate that each person with parenting time may make day-to-day decisions about a child when the child is in their care, unless a court orders otherwise. Day-to-day decisions include matters such as a child's bedtime. If a particular matter that would normally be a day-to-day decision is significant to an individual child, a court could make special mention of the matter in a parenting order. For example, if parents decided that a child was to be vegetarian, they would each choose meals for the child avoiding meat. A parenting order could provide for this.
The legislation preserves the Divorce Act principle that a child should spend as much time with each parent as is consistent with the child's best interests. Under the current Divorce Act, this is reflected in what is known as the "maximum contact principle." This principle is now subject to the "primary consideration" that a court must consider a child's physical, emotional and psychological safety, security and well-being above all else. This may be particularly important in cases of family violence.
It is important to note that this parenting time principle is not a presumption of equal time. As the Supreme Court of Canada has held with respect to the current Act, "the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted."
The 2019 changes to the Divorce Act introduce the concept of "decision-making responsibility" as the responsibility for making significant decisions about a child's well-being, including decisions about the child's health, education, language, religion, and significant extra-curricular activities. This responsibility could be allocated to one or both spouses or other persons who currently stand -or who intend to stand-in the place of a parent. The amendments also recognize the option of separately allocating different decision-making responsibilities to each parent. This may be helpful in cases where a court determines that joint-decision-making responsibility is not appropriate, but it would be in the child's best interests for both parents to be involved in certain decisions about the child.
"Significant extra-curricular activities" is included as one of the enumerated items in the definition of decision-making responsibility. Such activities are often the subject of considerable disagreement and sometimes litigation. This provision will guide parents and courts to consider these issues as early as possible in the process of coming to agreements. The term is intended to capture activities that require a greater investment of a family's resources, whether in terms of time or finances.
The goal is a change in the culture surrounding the delineation of the legal rights and responsibilities of separated parents and their children. The focus will hopefully become less about "winning" custody and having all the say regarding the children and more about dividing and allocating the various areas of decision making responsibility and parenting time.
The new Act mandates the best interests of the child (safety, security and well-being) as the primary consideration in the determining of parenting issues and requires the court to have specific regard to enumerated factors (section 16(3)):
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
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, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
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, giving due weight to the child's age and maturity, unless they cannot be ascertained;
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, in particular with one another, on matters affecting the child;
any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) 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
any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Under the 1986 Divorce Act "best interests of the child" is not referenced. There is no guidance or criteria set out in the Act for the making of a custody order at all. It has been left to the Courts to apply the common law principles of "best interests" and often taking from provincial statutes the enumerated considerations for best interests.
This is an obvious improvement and long overdue.
The court must consider the impact of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child. In cases of family violence, the court must also consider whether to require the parties to co-operate on matters related to the child.
In Canada, there are significant rates of family violence against children and spouses both during and after separation. Separation can be a particularly risky period for spousal violence.
Evidence indicates that family violence has wide-ranging effects on victims and families, including long-term impacts on the behaviour, development and physical, psychological and emotional health of the child.
Prior to these amendments, the Act made no reference to family violence. Now courts will have to consider the relevance of any family violence to the parenting arrangements for a child.
To assess the ability and willingness of a perpetrator of family violence to care for and meet the needs of the child, the court must consider what the history of family violence demonstrates about that person's ability to parent in the child's best interests. For example, the court would need to consider whether the person:
- might be violent with the child
- might use their relationship with the child to be violent with or control another person
- has caused the child to be fearful of them
- can be an appropriate role model for, and provide guidance to, the child
In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence.
There is growing evidence that each type of violence has unique impacts and effects. To determine which parenting arrangement is in the best interests of the child, the court must consider the particular nature and impact of the family violence.
At least four types of intimate-partner violence have been identified:
- Coercive and controlling violence: a pattern of emotionally abusive intimidation, coercion and control, often combined with physical violence.
- Violent resistance: generally in response to coercive and controlling violence, and committed to protect oneself or another person.
- Situational (or common) couple violence: generally due to an inability to manage conflict or anger in a particular situation, this violence is not necessarily associated with a general desire to control a partner.
- Separation-instigated violence: ranging from minor to severe, this generally occurs around the time of separation and involves a small number of incidents.
Real-life situations of family violence rarely will fall exclusively into one category of this or other typologies of family violence. It is important to look at the severity of the violence in each case.
However, while all violence is of concern, generally the most serious type of violence in family law is coercive and controlling violence. This is because it is part of an ongoing pattern, tends to be more dangerous and is more likely to affect parenting.
To help courts assess the impact, severity and risks of family violence, s 16(4) provides a non-exhaustive list of additional criteria related to family violence:
Factors relating to family violence
In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
the nature, seriousness and frequency of the family violence and when it occurred;
whether there is a pattern of coercive and controlling behaviour in relation to a family member;
whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
the physical, emotional and psychological harm or risk of harm to the child;
any compromise to the safety of the child or other family member;
whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
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
any other relevant factor.
Changes of residence and relocation
The other primary area of reform in the new Divorce Act involves mobility or as it is now termed, "relocation".
Relocation, or moving a child after separation and divorce, is one of the most litigated family law issues. In a 2016 survey of lawyers and judges, over 98% of respondents indicated that disputes are harder to settle when relocation is involved.
The leading case in this area is Gordon v Goertz, decided by the Supreme Court of Canada in 1996. The Supreme Court held that, before actually considering the merits of an application to vary a custody order in the context of a proposal for relocation, a court must be satisfied that the relocation constitutes a material change in the circumstances of the child. If it does constitute such a change, in determining the best interests of the child, the court should consider, among other factors
- The existing custody and access arrangements and relationship between the child and each parent
- The desirability of maximizing contact between the child and both parents
- The views of the child
- The custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child
- The impact of the potential disruption on the child of either a change in custody or removal from their current environment
According to the Supreme Court, there is no presumption in favour of the custodial parent, although the views of the custodial parent are entitled to "great respect and the most serious consideration."
Gordon v Goertz
did not address issues related to notice of a move, or who must bring an application for variation of the order before a relocation may occur.
There has been a great deal of criticism in the academic literature and by practitioners about the state of the law related to relocation. Some have argued that the decision in Gordon v Goertz does not provide sufficient certainty, making it difficult to predict the outcome in a case, advise clients and settle cases. The Supreme Court's direction that the reason for the move should only be considered exceptionally has largely been ignored, as in practice the reason for the move often relates to an analysis of the best interests of the child.
Over time, some patterns in the case law have emerged. In particular, two patterns are important to highlight. First, a relocation is more likely to be denied if there is a shared care/custody arrangement. Second, where there is a clear primary caregiver for a child, a move is more likely to be approved.
There is little empirical research on relocation's effects on children, and most of what is available is limited by small sample sizes and other methodological challenges. While some research suggests that relocation can be disruptive for children and affect their relationships, a range of factors needs to be considered.
The 2019 changes to the Divorce Act set out a framework for changes of residence and relocation that includes three broad components:
- Notice of a proposed change of residence or relocation
- Additional best interests criteria for relocation cases
- Burdens of proof that will apply in certain relocation cases
Key to the application of these provisions is the concept of "relocation" which is defined as a move-either by a child or a person with parenting time or decision-making responsibility-that could have a significant impact on the child's relationship with a person with parenting time or decision-making responsibility, a person applying for such responsibilities, or a person who has contact with the child under a contact order.
As noted these changes come into effect across Canada on July 1, 2020 and represent a fundamentally new way of dealing with children's issues on separation. The hoped for cultural shift will take time for all users of the system, including, judges, mediators, educators, health treatment professionals and parents but is largely seen as a positive and much needed step.
It is understood that these changes only apply to married persons and their children who are proceeding to a divorce. Unmarried parents and parents who are not seeking to divorce are governed by provincial and territorial legislation, such as the Childrens' Law Reform Act in Ontario.
It is hoped that the provinces and territories amend its applicable legislation to mirror the Divorce Act amendments to coincide with the July 1, 2020 implementation date so all families and children are treated equally under the law.
Leading groups in Ontario, such as the Ontario Bar Association Family Law Section have submitted briefs to the Attorney General in this regard.
* Legislative Background: 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 (Bill C-78 in the 42nd Parliament)