Canada’s Divorce Act was chiseled into a stronger legal instrument aimed at working more directly for children’s best interests. Many of those changes – effective March 1 – have lawyers experiencing a sense of relief for what it now means for their clients.
“The biggest change that people will notice immediately is that there is a requirement to give 60 days’ notice of any proposed move, whether that's a change of residence in the same city, or whether that's a proposed relocation. That's something that family law lawyers have been advising their clients to do for a long time, but it was never required by law. That is a pretty concrete immediate change,” stated Jessica Chapman, a family lawyer with Legal Aid.
She added a shift in language is another change.
“You'll often hear people say that they want full custody. Full custody has never been a concept in our law but certainly, custody and access is gone now from the language,” she began. “The general theme I would say is that the time to make the act more child-focused and more trying to make analysis happen from a child-centered point of view. I think that's why the language of ‘custody’ and ‘access’ has been changed to ‘parenting time, decision-making and contact’ to reflect how it impacts a child's life.”
The new language in these sweeping revisions now also includes consideration of family violence, including threats and patterns of coercive control, for the first time ever.
“Not only does this legislation change language, but there's some specific tools in it requiring judges to consider other orders. It's an attempt to try and co-ordinate criminal and civil court. The civil judges who sit in family court will now have to be looking at what's going on in criminal court, as well in terms of release conditions, peace bonds, and sentences and probation orders.”
It’s all about working toward best possible outcomes for the children, she added, noting that many negative effects can arise when parents’ relationships go wrong.
“The brain science shows that when kids are exposed to conflict or domestic violence between their parents in particular, it has long-term impacts on not just their mental health, but their physical health. Children who have been exposed to a lot of conflict are more likely to have diabetes, for instance. It's not that they've been able to establish a cause but there's a definite correlation.”
Among the other changes are also provisions to protect a child’s safety and well-being, including considerations for the child’s views and preferences and their cultural heritage. There are also changes to parenting time, parenting plans and contact by non-custodial spouses.
The new Divorce Act is designed to promote children’s best interests, reduce family violence, help reduce poverty, and make the justice system more accessible and efficient.
“The changes are broad and many of these changes are greatly needed and wanted. Take for example contact orders. They give the ability for relatives (such as grandparents) to apply for a contact order so they may have regular visitation and communication with a child. This may be a tremendous tool for family members who struggle to maintain contact with their loved ones,” offered Rob Armstrong, a St. Albert resident who recently failed in his petition to the federal government to change its child support guidelines.
Don’t get too excited, he added, remarking that many of the changes should have been made two decades ago.
“It is surprising to see that the act finally formalizes how to deal with orders made in other provinces and countries.”
While Armstrong did agree that a lot of the changes in language mark a trend in the right direction, much of it might not have a substantive effect, he noted.
“There is an expanded use of the term ‘in the best interests of the child.’ This of course is a worthy phrase, however, most courts are dealing with affidavits as evidence and do not order a home study by a child psychologist, which can easily cost $30,000. The end result is that courts are often guessing at what is ‘in the best interests of the child’ and outcomes are subjective and can vary.”
He added there is still no presumption of equal parenting though there is some strengthening of the powers of the Alberta Maintenance Enforcement Program to calculate and collect child support. This isn’t reflected in the child support guidelines themselves, which was the subject of his petition.
