Significant changes to Canada’s Divorce Act have been put in place, marking the first time in over 20 years that the country’s family laws seen such wide-ranged revisions. At HMC Law, we wanted to take a few moments to advise our readers as to what these changes mean and how they could impact family law matters going forward.
The best interests of the child receive more detailed
Family law, and the courts, have long placed the best interests of the child as paramount in matters related to children, including custody and access, what school the children should go to, whether a parent can relocate, and more. Prior to the most recent changes, the Divorce Act stated that the best interests of the child should be the exclusive point of consideration for these types of issues. However, the courts were left to determine what made up the best interests of the child, with judges relying on common law to put together a list of factors. In what may be an acknowledgement that the country’s laws should reflect these, the Divorce Act now states that in addition to factors such as a child’s physical, psychological, and emotional safety & wellbeing, other questions to ask about the best interests of the child are:
- the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
- the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
- the child’s views and preferences
Of course, every child is different and the Act states that there is no standardized approach to how these factors apply to each child.
Family violence is formally addressed in family law
The changes to the Act also move to specify how family violence should be considered when making determinations as to what the best interests of the child are. With the changes in place, courts will be directed to take family violence into account when addressing issues related to parenting time, contact with children, and child support. The Act also defines family violence as more than simply physical violence. Family violence includes the following types of conduct:
- a pattern of coercive and controlling behaviour
- causes a family member to fear for their safety
- directly or indirectly exposes a child to such conduct
Changes in how we discuss access to the child
For a long time, advocates for updates to family law have stated that the system as it exists today (prior to the Act being amended) focuses more on the conflict between the parents, creating a system that focuses on ideas of winning and losing.
The changes to the Divorce Act address this by updating the language used to discuss issues related to children. Phrases such as “child custody” are being retired in favour of “parenting orders” which will be used to determine the schedule that dictates which parent a child will live with at any given time. It is also used to discuss matters related to making decisions for a child, such as what school they might attend.
At HMC Lawyers, our approach focuses on finding positive solutions through negotiation and mediation on behalf of our clients. Our family law lawyers endeavour to resolve disputes in an efficient and timely manner, thereby minimizing stress to our clients. If court is required, we have the support of a respected litigation firm.