The 1986 Divorce Act has not been significantly updated since it came into effect. Bill C-78, which received royal assent on June 21, 2019, is set to change that. 

 Bill C-78 amends the Divorce Act, Agreements enforcement Assistance Act, Family Orders, and the Garnishment Attachments and Pension Diversion Act. 

Bill C-78 aims to address four key objectives:

• to promote the best interest of the child;
• to address family violence;
• to help reduce child poverty; and 
• to make Canada's family justice system more accessible and efficient by restructuring the processes and reducing the need for court intervention. 

The 1986 Divorce Act states that when making an order related to parenting, the court is to consider the "best interests of the child" by reference to the "condition, means, needs and other circumstances of the child."

Bill C-78 aims to clarify the "best interests of the child" by setting out several factors for determining the child's best interests to help judges, attorneys, and parents decide the arrangement that best suits their children's best interests in divorce and custody proceedings. 

The factors discussed in the legislation include the child's mental and physical needs, the nature of the child's relationship with his or her parents, siblings, and other family members, the willingness of each parent to support and maintain the child's relationship with the other parent, the child's own preferences, the history of the child's relationship with the parents, plans for the child's care, the child's cultural heritage, the ability of the parents to care for the child and meet his or her needs, and any family violence or criminal or civil proceedings against the parents.

A fundamental change in the new legislation replaces the terms "custody" and "access" with terms that focus on the parents' responsibilities to the children to reduce the potential for arguments and strife between the parents. These terms were removed from the language of the Divorce Act due to the connotations of ownership and restriction in the term "custody" and the fact that the terms imply that there are winners and losers among the parents in the divorce proceeding. 

The Divorce Act's revisions also create "parenting" and "contact" orders for courts to provide specific direction regarding the children's care.

Parenting orders are intended to allow the parents to set out parenting time when a parent is responsible for the child, decision-making responsibility, or the parent's ability to make decisions about the child involving his or her health, education, or any other important factors. The new additions to the Divorce Act allow for parenting time to be allocated according to a schedule in order to reduce the potential for disputes between the parents. In addition, the decision-making responsibility can be allocated to both spouses or to those who stand in the place of a parent, and the amendments to the law recognize that it may in some situations be best to allocate different decision-making responsibilities to both of the parents if it is in the best interests of the child. 

Bill C-78 amendments also include provisions to prevent child abduction, including a requirement that parenting orders be heard in the province where the child resides and prohibits removing a child from a geographic area without the written consent of a specified person in a court order. Contact orders are intended to facilitate contact between the child and family members when the relationship between the former spouses and/or other family members has become strained. Under this rule, a non-spouse may apply to the court for a contact order to spend time with the child. Contact orders are subject to the same conditions as parenting orders, but contact orders do not allow the person filing them to make day-to-day decisions regarding the child's welfare, unlike parenting orders.

The amendments introduce provisions for helping solve disputes between the parents over relocation so that conflicts between the parents are kept to a minimum. Because relocation tends to exacerbate conflicts between the parents and make it harder to work out solutions, the amendments set out a framework for parties to work through relocation, including; a requirement of notice to all parties, an additional best interests criteria used for relocation cases, and a different burden of proof standard for certain relocation cases. If a party objects to the relocation of a child, they must negotiate a resolution with the relocating party. If the parties cannot resolve their differences outside of court, they can file a motion in court to determine if the relocation is in the child's best interests. In addition, courts will consider other factors in relocation cases, such as the reasons for and the impact of the relocation, the amount of time the child spends with each person who has parenting time, compliance with existing legal obligations, the reasonableness of the proposal, and whether or not notice was provided.

The new amendments also make several changes to the Divorce Act dealing with domestic violence. The amendments direct the court to consider any civil or child protection orders or criminal proceedings against any of the parties that are pending or current. The amendments also require courts to consider the impact of domestic violence on the ability and willingness of the offending party to care for the child, and for courts to consider factors such as the nature of the violent behavior, patterns of coercive and controlling behavior, and whether there have been any steps taken to prevent any future violence.

Finally, Bill C-78 aims to make it easier for families to obtain family support services because divorce and separation proceedings are often financially draining for parties, especially lower-income families. The amendments aim to help reduce poverty and reduce any negative economic consequences stemming from a divorce or a separation. They also authorize the Canadian federal government to release income information of a party to the court in order to establish, modify, or enforce family support.

Bill C-78 amendments to Canada's Divorce Act are intended to provide the best possible outcome for the child by focusing on his or her best interests. Hopefully, these reforms will aid courts and parents in finding the best possible solution to divorce and separation cases involving children. 

The legislative amendments will have a significant impact on separating and divorced spouses and families. Arch Law Office would be happy to advise clients on how the amendments apply to your situation. Please contact our office to discuss your options by contacting Onosen Mike-Ifeta at 587-566-6525 or email at onosen@archlawoffice.