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Summary of most significant proposed changes to the Divorce Act (and other statutes)
Yesterday was the first reading of Bill C-78, 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.
Here are some of the most significant proposed changes that if passed, are most likely to affect your practice, starting with changes to the Divorce Act:
The term "custody" has been replaced with "parenting" and "decision-making responsibility", as in a "parenting order" or "parenting time". The terminology was also updated in the Criminal Code. A definition for "decision-making responsibility" has been added, which means the responsibility for making significant decisions about a child's well-being, including in respect of a) health; b) education; c) culture, language, religion, and spirituality; and d) significant extra-curricular activities.
Rather than using the terms "ordinary residence" and "most substantially connected" with a province, the Act now uses the "habitual residence" term (the same term as the MPA and Hague Convention use). There are slight changes to the procedure where documents are filed in multiple courts, although they essentially codify the common law.
The Act imposes several parental duties, including an obligation to exercise parenting time, decision-making responsibility, and contact in a manner that is consistent with the best interests of the child (where an order granting them time/responsibility has been granted). There is also an obligation to protect children from conflict arising from the proceeding, to the best of their ability. Fortunately, as I could have otherwise seen that being misused to withhold parenting time, there is also a duty to comply with court orders. There is also an obligation on anyone bound by an order under the Act to provide complete, accurate, and up-to-date information if required to do so under the Act. Parties will be required to certify that they are aware of these duties when filing their Statement of Claim or Statement of Defence, which will mean updating our precedents (although it's not clear whether clients will now be signing SOCs/SODs). If the Court doesn't publish precedents before this comes into force, I'll try to remember to post mine. No offence/penalty provisions are created though, so these duties may have limited bite, other than being able to claim that a party has violated the Act.
The lawyer's duty has been expanded beyond being required to assist with reconciliation and informing of negotiation/mediation. We're now required to encourage "family dispute resolution processes" (i.e. ADR, but without using the term "alternate"), unless the circumstances are of a nature that it would clearly not be appropriate to do so, as well as inform clients of family justice services, and inform clients of their duties. "Family dispute resolution process" is a non-exhaustive definition which includes negotiation, mediation, and collaborative law. Courts may direct parties to attend a family dispute resolution process (subject to provincial law). As this will also be added to the lawyer's certification in the Statement of Claim (and by the looks of it, also the Statement of Defence), this will mean updating our precedents, and likely referring to these items in our retainer agreements.
In any proceeding for corollary relief (not just parenting), courts will have a duty to consider whether there are any civil protection orders/proceedings (EPOs, and restraining/no-contact orders), child protection orders/proceedings/agreements/measures, or orders/proceedings/undertakings/recognizances in relation to any matters of a criminal nature, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so. Provincial law may also enable courts to review information that has been obtained through a search. Civil protection orders are defined. "Family violence" has been defined, and has a fairly broad definition, which essentially includes physical abuse, forced confinement, sexual abuse, threats to kill or cause bodily harm, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, threats or the killing or harming of an animal or damaging of property.
The definition of collusion has been expanded to include collusion in relation to parenting time or decision-making.
Section 16 relating to custody orders has been completely re-written. Is also uses the new "parenting orders" terminology. Courts must consider only the best interests of the child when making a parenting or contact order, which are enumerated across two lists of factors, which are fairly close to those set out in our Family Law Act. Subsection 4 sets out 8 factors to take into account when addressing family violence in particular.
Parenting orders are now dealt with under a separate section 16.1. Parenting orders include the allocation of decision-making responsibility, can address communication between the child and parents, and address other "appropriate" terms. It has been explicitly set out that parenting time or exchanges may be supervised. "Maximum contact" has been renamed to "maximum parenting time", although that time must still be consistent with the best interests of the child. Non-spouses continue to require leave to obtain a parenting order, however it appears that they must now either stand in the place of a parent or intend to stand in the place of a parent.
Custody will be different in several respects. I'm sure that the media will pick up that there is no longer any reference to the term "joint custody" or similar concept in the Act. A person with parenting time has exclusive authority to make day-to-day decisions affecting the child, unless the court orders otherwise. There is a new provision relating to entitlement to information (section 16.4) which states that unless the court orders otherwise, a person with parenting time or decision-making responsibility is entitled to request and be given information from the other parent or third parties about the child's well-being, including health/education information (note in particular the obligation between parents). This is subject to any applicable laws (presumably in relation to orders/undertakings/recognizances relating to family violence).
Relocations are now addressed in significant detail. Courts may authorize or prohibit the relocation of a child, and may prohibit the removal of a child from a "specified geographic area" without written consent or order. Previously, the Act only referred to courts' ability to order notice of a relocation (which was under-utilized), however parents intending to change their "place of residence" are now obliged to notify anyone with parenting time/responsibility of their intention, which must be in writing and include the date that the change is expected to occur, their new address, and new contact information. Notice of relocations is also required, on the same terms, except with the additional requirement that at least 60 days' notice be required, and that the notice also propose how parenting time, decision making responsibility, or contact could be exercised. On application, courts can modify notice requirements, including where there is a risk of family violence. Provided that proper notice is given, the relocation is authorized if ordered by a court, or an application isn't brought by the other parent within 30 days of the notice and there is no order prohibiting the relocation. This means that there is a new 30 day limitation period to file an application preventing a relocation. Depending on judicial interpretation, this might also mean that a person can relocate even if it changes the existing parenting schedule (i.e. the onus might no longer be on the relocating parent to seek a variation).
The Gordon v Goertz factors have been modified, with the most significant changes to the factors being that a) the new enumerated factors in relation to best interests are also to be considered; b) the parent's reasons for moving are not explicitly stated to be relevant only in certain restricted circumstances (although see below in relation to the double-bind problem); c) courts can consider whether the person complied with any applicable notice agreements (and those in orders/awards/agreements); d) an additional factor is added, being whether there is any order/award/agreement specifying the specific geographic area in which the child is to reside; e) another additional factor is added, being the reasonableness of the mover's proposal to vary parenting time, decision-making responsiblity, or contact, taking into account at least the location of the new residence and travel expenses; and f) a third additional factor is added, being whether the parties have complied with their obligations under legislation/orders/awards/agreements, and the likelihood of future compliance (in my opinion, this is a fantastic factor). One change that I expect to be fairly controversial is the codification of Alberta's approach to the double-bind problem. Courts will be prohibited from considering whether the mover would still relocate even if the child was not permitted to relocate with them. Several Courts of Appeal outside of Alberta have taken the opposite approach, for example the BC Court of Appeal had stated that intention should be considered, because if best interests is to be paramount, then whether relocation applications are less likely to succeed shouldn't trump the best interests of the child. Epstein's This Week in Family Law (2016-30), circulated by Westlaw, had also heavily criticized Alberta's approach. This means that throughout the country, this might become the only factor that overrides the best interest of the children (which I find very problematic). Another very significant change is the assigning of onuses. Where parenting time is "substantially equal" (i.e. shared, although maybe not the same 40% threshold), the mover has the onus to prove that the relocation would be in the best interests of the child. Conversely, where the child "spends the vast majority of their time in the care" of the mover, the party opposing the relocation has the burden of proving that the relocation would not be in the child's best interests. That doesn't necessarily mean more than 60% with one parent, because it is also stated that in "other cases", neither party is solely assigned the onus. However, for interim orders, courts can decide not to enforce the onus (I suspect this will be used primarily where courts prohibit the relocation or do not require a return until a trial). Courts can now also allocate travel costs.
The Act now contains terms relating to contact orders (section 16.5). These can be sought by non-spouses (e.g. grandparents). Contact orders may only be brought where there is already a parenting order. Leave of the court must be obtained. Courts can consider whether contact would otherwise occur during another person's parenting time. Contact orders can contain other "appropriate" terms. Contact or exchanges can be supervised. Parenting orders can also be varied to take into account the contact order. Courts can also prohibit the removal of a child from a "specified geographic area" without written agreement or further order. Persons exercising contact must notify parents in writing of any change of their residence, including the date of the expected change, their new address, and new contact information. If the change is likely to have a significant impact on their relationship with the child, there must be at least 60 days notice. Again, these notice requirements can be varied where "appropriate", including where there is a risk of family violence.
Parties can now submit parenting plans (presumably with consent), which shall be included in an order, unless not in the best interests of the child, in which case courts can make "appropriate" modifications.
Sections 17.1 to 19 relating to extra-provincial and provisional orders has been entirely re-written, although the changes are generally procedural. Section 22.1 has been added, which permits courts to recognize foreign parenting/contact orders which vary parenting, except in certain circumstances.
The terms of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (a 2007 Convention signed by Canada in 2017 but not yet ratified) are given force of law (subject to provincial jurisdiction), will be appended as a Schedule 1 to the Act, and are stated to prevail over the Act. This is a very lengthy Convention, but it essentially permits the recognition/suspension/limitation of foreign support orders, as well as a procedure for varying or making child support orders between many more countries than are currently listed under ISO regulations. Certain provisions will only apply to spousal support provisions if Canada declares that they will.
The terms of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (a 1996 Convention signed by Canada in 2017 but not yet ratified) are given force of law (subject to provincial jurisdiction), appended as Schedule 2 to the Act, and are stated to prevail over the Divorce Act. Certain provisions are stated to only apply if Canada declares that those provisions will apply to a particular province. Similarly, the Convention is very lengthy, and there are provisions for the recognition of orders and variations. There are provisions prohibiting Canadian courts from making parenting orders in certain circumstances, and for the transfer of jurisdiction.
Additional terms have been added to further empower provincial Recalculation Programs, such as by specifically permitting recalculations upon relocations (it might even be interpreted to empower them to make calculations where there are no orders), and imputing income where requested financial information is not provided.
Transitional provisions confirm that proceedings commenced before the new Divorce Act comes into place, and not yet finally disposed of, will continue to be governed by the 1985 Divorce Act. Someone who previously had custody is now deemed to have parenting time and decision-making responsibility.
The Family Orders and Agreements Enforcement Assistance Act has been amended, which pertains to releasing information, garnishing federal payments, and federal license denials. Applications to release debtor/abductor information to the court can now explicitly be made ex parte where reasonable steps to locate a debtor/abductor have been conducted but have failed, although a criminal record check is required, along with several items that must be addressed in an affidavit. The Federal Government can now also enter into agreements with police forces regarding information searches. Federal payments can now be also garnished where an order reimburses a person as a result of a denial of or failure to exercise parenting time or contact, and orders relating to the cost of exercising parenting time as a result of a relocation. The garnishment period has been altered as well.
The Garnishment, Attachment and Pension Diversion Act has also been amended, which relates to garnishment of federal pensions. Garnishee summons are now defined to include court orders relating to support issued by a provincial enforcement service.
Please note that this is only a rough summary, you'll have to read the Bill for a more accurate picture. I've tried to use general terms, for example "parents", rather than more specific terms such as persons with parenting time. Also keep in mind that this was only first reading, it's definitely possible that the Bill will be amended as it passes through the House and the Senate.
Two things stick out - the 30 day time limit to bring an application stopping a move may prove problematic when we have capped lists in Calgary.
Secondly the provision for allocating costs of exercising parenting time is a welcome addition in the right case. I read quickly and didn't see how it reconciles with the undue hardship provisions in the child support guidelines.
30 days to file is too tight. People need to time to absorb the new information and a chance to maybe work something out or negotiate before having to file. Keep in mind it might take some time to react, get the appointment with a lawyer, etc., and compelling filing as a pre-requisite means doing an affidavit, in Calgary at least that might mean it is one's only affidavit, so it has to be complete and then the war of affidavits starts that could have been avoided. If anyone is talking to the feds or the rules committee about this I would suggest consideration of an amendment that allows the mere filing and service of a Notice of Objection (a standard form) without more and that the Notice of Objection then compels either a mediation or a brief judicial conference or a DRO meeting or something to engage the parties in discussion without the need to file affidavits to front end load the thing and get some initial direction. And allow parties to opt out of that by mutual agreement or by application if it is an emergency or there are some circumstance, like family violence, that make it inappropriate. It just seems wrong to put the onus on the party seeking to stop relocation in most cases as they aren't the ones looking to initiate change.
I definitely agree. Postponement Agreements probably can't technically even extend this deadline, because it's not a contractual or common law cause of action that can be deferred, and the Divorce Act doesn't contain a built-in ability to extend deadlines as the Rules of Court does. Hopefully this is addressed by the time the Bill is passed.
These are the most significant amendments which were passed between the first reading and the version as passed by Parliament:
Parliament has made it possible for a special 60-day-notice-of-relocation form to be prescribed by the regulations.
Applications to vary relocation notice rules will be able to be made without notice (as in the case of family violence).
The short 30-day period to object to a relocation is still in place, but instead of having to apply to the court, they've thankfully made it so that an objection in a form prescribed by the regulations can be served instead. There are also now rules about what needs to be set out in that notice.
Language rights have been set out. Divorce proceedings can be conducted in either English, French, or both languages. Pleadings, evidence, and submissions can be made in either English or French, and the court shall, upon request, provide simultaneous interpretation. A judge fluent in either offical language may be requested. Transcripts and judgments can be requested in either language. Court forms will also need to be provided in both official languages.