In Canada, the legislation governing a divorce is the Divorce Act, RSC 1985, c. 3 (2nd Supp). This legislation has remained in place, without any significant amendments, since 1985. However, our team of family lawyers in Nova Scotia are excited to report that new amendments have now been made to this piece of legislation, which have taken effect as of March 1, 2021. These will have a significant impact on how the Courts, and counsel, handle your divorce moving forward.

New changes made to the Canadian Divorce Act

One of the changes made to the Divorce Act is actually the language contained within it. The changes move away from the language of custody, and instead, replaces it with more plain language terminology like “parenting time” and “decision-making responsibility.” Orders under the Divorce Act moving forward will now use these terms.

The amendments to the Divorce Act have also included a definition of family violence, and a requirement that the Court consider the impact of family violence in determining the best interests of the child. This is very important as it formally recognizes the impact of family violence. Previously, the Divorce Act was silent on this issue.

New focus on the best interests of the children analysis

Perhaps one of the most noteworthy amendments to the Divorce Act is the new focus on the best interests of the children analysis. Previously, the Divorce Act simply stated that in making an order for custody or parenting, the Court was to consider what was in the best interests of the children. Little guidance was given on how to make this analysis, leaving each province to develop their own case law as to how this would be addressed. With the new amendments, several non-exhaustive factors have been listed under s. 16 (3) of the Divorce Act for consideration by the Court in making this determination. These factors are as follows:

Factors to be considered

16 (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a)  the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b)  the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c)  each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d)  the history of care of the child;

(e)  the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f)   the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)  any plans for the child’s care;

(h)  the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

                      i.        the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

                     ii.        the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k)  any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The amendments to the Divorce Act also include new provisions giving the Court guidance and a framework for addressing the issue of relocation. Previously, the Divorce Act remained silent on this issue and as such, the Courts developed case law to address it. Now, there are legislative burdens of proof, mandatory notice provisions, and added best interest factors specific to relocation cases. It is hoped that these provisions will help provide guidance and clarity to an otherwise grey area of the law.

The changes to the Divorce Act apply prospectively, but in some cases, can apply retroactively. Amendments have also been made that are not canvassed in this blog. If you have a matter before the Courts under the Divorce Act, or are thinking about starting an application under the Divorce Act, the family lawyers here at Lenehan Musgrave can help you navigate these changes effectively.  Contact us for a consultation today.