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Proposed Reforms To The Divorce Act

May 2 2019

Introduced in May 2018 by the federal government, Bill C-78 proposes significant reforms to Canada’s Divorce Act. It is the first substantive revision of the Act in more than 20 years and is intended to modernize Canada’s family laws.

Family law is an area of shared jurisdiction. The federal Divorce Act applies to married couples who are divorcing. Provincial legislation, like BC’s Family Law Act, applies to common-law spouses and property and debt division for both married and common-law spouses. The proposed changes to the Divorce Act would provide consistency between the provincial and federal legislation dealing with children in marital disputes and bring the Divorce Act more in line with BC’s Family Law Act.

The Divorce Act reforms aim to do the following:

Focus on the best interests of the child

The bill promotes the best interests of the child as the foremost consideration in making decisions. It puts a focus on children’s rights and includes a non-exhaustive list of 11 factors for courts to consider when determining the best interests of the child. Similar provisions exist in section 37(2) of BC’s Family Law Act.

Replace outdated terminology with child-focused language

“Custody” and “access” will be replaced with more neutral terms related to parenting, such as “parenting time” and “parenting orders”. This terminology is already used in BC courts because of the Family Law Act.

Encourage less conflict and less time in front of the court

The reforms would encourage separated spouses to step outside the court process in an attempt to mediate the dispute, using tools other than litigation. Family lawyers would have a duty to encourage clients to use these family dispute resolution tools, which would include mediation, negotiation and collaborative approaches to divorce.

Address family violence

The current Divorce Act does not have provisions to deal with family violence, despite the enormous effect family violence has on children and parties to a separation.

The proposed reforms define family violence as behaviour or conduct that is violent, threatening or part of a pattern of coercive and controlling behaviour that causes a family member to fear for their safety, or directly or indirectly exposes a child to such conduct.

The courts would have to take family violence into account when deciding parenting arrangements that are in the best interests of the children. They would also need to consider any other orders made in other proceedings, including by a criminal court. BC’s Family Law Act has included a definition and provisions for dealing with family violence since its enactment in 2013.

Provide a framework regarding the relocation of a child with one parent

The reforms propose new guidelines to help courts decide whether the relocation of a child following a divorce would be in a child’s best interest and should be allowed.

Make Canada’s family justice system more accessible and efficient

The reforms would simplify processes, including those related to family support obligations, in an effort to make the family justice process more accessible and efficient.

If a divorce is pending and you are concerned about the outcome, contact RDM Lawyers. One of our experienced family law professionals can explain your options and help you navigate what can often be an emotional and complex process.

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