Equality and Justice
For People With Disabilities

Family Matters: Changes to Canada’s Divorce Act 


Published on July 8, 2020

Family Matters: Changes to Canada’s Divorce Act 

Ariane Lefebvre, University of Ottawa Law Student

Family law continues to have a tremendous impact on Canadians as more people every year are experiencing divorce or separation.  In Canada, almost 40% of marriages end in divorce. In fact, family law is the second most requested area of law in which Reach’s legal referral services are required. Reach aims to provide legal and resource information to people with all disabilities and are hopeful that information about changes to family law legislation will be of assistance.

The Government of Canada introduced Bill C-78 with the objective of modernizing family law to reflect the current and evolving social changes. The proposed changes to the Divorce Act aim to promote the best interests of the child, address family violence and make Canada’s family justice system more efficient and accessible. 

This article gives an overview of the upcoming changes to Canada’s Divorce Act predicted to come into effect March 1, 2021.  

Promoting the best interests of the child

Best interests criteria

In family law, the best interests of the child are and must remain the fundamental consideration in all custody and access determinations. Under section 16(8) of the current Divorce Act, 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”. Bill C-78 sets out a list of specific factors that a court must consider in determining the best interests of the child, such as, the child’s age and stage of development; the nature and strength of the child’s relationship with each spouse; the child’s views and preferences and the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage. These additional factors ensure that the courts tailor parenting agreements to each child’s unique situation. 

Child-focused terminology

Bill C-78 eliminates the legal concepts of “custody and access”, replacing them with more modern terms of “parenting orders, parenting time and decision-making responsibility”. This change in terminology makes the law more child-focused with a greater emphasis on the parental relationship with the child.  

Address Family Violence

Until the introduction of Bill C-78, the Divorce Act did not make any reference to family violence. Family violence can take many forms and cause direct and indirect harm to both the victims and witnesses. The Bill proposes, under section 2(1), a statutory definition of family violence defining it as any conduct that is violent, threatening, a pattern of coercive and controlling behaviour, causes a family member to fear for their safety and directly or indirectly exposes a child to such conduct. Furthermore, the violent behaviour does not have to be a criminal offence to be considered family violence under the Divorce Act. A child’s direct exposure to family violence is recognized as family violence and child abuse. 

In order to determine which parenting agreement is in the best interests of the child, the courts will have to take family violence into account. Bill C-78 provides a non-exhaustive list of factors to be taken into account in determining a child’s best interests, and include:

-the nature, seriousness and frequency of the family violence; 
-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;
-and whether the family violence causes the child or other family member to fear for their own safety or for that of another person. 

The Government of Canada recognizes that family violence can take many forms and can cause significant harm to those involved. The upcoming changes are intended, first and foremost, to help protect family members from violence. They will assist the courts in drafting safe and appropriate parenting agreements in cases where there has been family violence.   

Encourage dispute resolution

It is generally more accessible and cost effective to resolve issues through dispute resolution processes such as negotiation or medication. To ensure that the parents know their options, lawyers will be required to inform their clients of family justice services that could be of assistance and to “encourage” them to attempt a “family dispute resolution process”. In cases involving children, dispute resolution processes are of particular advantage such as they usually aim to keep the parents focused on the best interests of the child. 

However, Bill C-78 recognizes that dispute resolution processes are not appropriate in all circumstances. More specifically, in instances where there has been family violence or there is power imbalance between the parties in question, court proceedings are generally a better option. 

Conclusion

These upcoming changes to our family justice system are long overdue and aim to reduce conflict and help families find timely, lasting solutions. Divorce and separation can be extremely difficult for families, even more for children, Bill C-78 will likely impact many Canadians who find themselves navigating the family justice system. 

Please note that this article should not be taken as legal advice. 

If you are a person living with a disability and are experiencing a family law issue, Reach’s legal referral service may be able to help. Contact Reach by phone at 613-236-6636 or by email at lawyerreferral@reach.ca. 

Need further assistance?

Family Law 

University of Ottawa Legal Clinic provides assistance for some family law issues for those who qualify financially, contact at 613-565-5600. 

Legal Aid Ontario telephone legal assistance provides brief advice for people who are financially eligible for Legal Aid Ontario services, contact at 1-800-668-8258.  

For more information on what you need to do when separating or divorcing, you may consult: 

https://www.cleo.on.ca/en/publications/introfam/what-you-need-do-when-separating-or-divorcing

To file a simple or joint divorce application online, consult: https://www.ontario.ca/page/file-divorce-application-online 

If you have further questions about family law, consult: https://stepstojustice.ca/legal-topic/family-law 

Family violence

Luke’s Place Virtual Legal Clinic provides family law services to women anywhere in Ontario who have been subject to intimate partner violence, you may consult:  https://lukesplace.ca/for-women/lukes-place-virtual-legal-clinic/