Proposed Changes to the Divorce Act, Part 1

What are the proposed changes to the Divorce Act?

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On May 22, 2018, Bill C-78 had its first reading. This bill proposes several changes to the Divorce Act and related legislation. In this post, Ainsley Shannon, a Fresh Legal intern from the University of Ottawa law school, reviews the changes related to the terminology for parenting after divorce and the best interests of the child. If you want to read the bill yourself, it can be found here. The bill also sets out a framework for parental relocation after a separation, which is reviewed in Part 2 of this post.

"Custody" vs. "Parenting"

Bill C-78 was introduced in the House of Commons on May 22nd, 2018 and is in its very early stages of potentially becoming law. The Bill proposes changes to the Divorce Act.  Some of these changes include the replacement of the word “custody” with the term “parenting order” and the term “access” with “parenting time”. Terms like “parenting” aim to be neutral. A primary goal of the Bill is to eliminate an adversarial approach to family law disputes and promote alternative resolution processes.

What does "the best interests of the child" mean?

One of the most notable changes is the inclusion of a list of factors that must be considered when a custody or access decision is made. As the Divorce Act presently stands, custody decisions are to be made in the best interests of the child, but what that means is not defined. The new Bill would add a list of thirteen factors that must be considered when determining those best interests.

The new list of factors includes: the child’s relationship with each parent and/or other relatives; the parent’s willingness to take care of the child; the history of care; the child’s views; the parent’s ability to cooperate with the other parent; any criminal or civil proceedings that are relevant to the safety and security of the child; and any future plans for the child.  

Additionally, it would be required that the court consider the impact of family violence on the child. The framework for assessing the impact of family violence includes considerations of the seriousness and frequency of the violence; when it occurred; whether there is a pattern of behaviour; who the violence is directed at; the harm and fear caused, and any steps taken by the offender to prevent further harm. The idea behind these lists is to give more clarity and structure to the Divorce Act.

The Children's Law Reform Act

Initially, such changes seem radical. However, the Children’s Law Reform Act (CLRA), which is the governing law on custody in Ontario, already includes a series of similar factors. Though technically only the Divorce Act applies to Ontario residents seeking a divorce, the CLRA has traditionally been persuasive for Ontario judges. Both the CLRA and Bill C-78 take into consideration the stability of the home, the child’s relationship with parents and other family members, the ability and willingness of the parent to support the child, the child’s views and preferences and the existence of any family violence.

Though both acts are similar there are some small differences. Unlike the CLRA, the proposed changes to the Divorce Act specifically place importance on each parent’s ability and willingness to foster a relationship with the other parent. Additionally, the changes include a requirement to consider the child’s cultural and religious upbringing including Indigenous heritage something not included in the CLRA. Finally, the new Divorce Act (unlike the CLRA) would include the requirement to consider civil or criminal proceedings, orders, conditions or measure that are relevant to the safety and security of the child.