Canada’s updated Divorce Act is Now in Effect

Canada’s updated Divorce Act came into effect on March 1, 2021.

The most noticeable changes focus on children – specifically, putting the children’s needs first when the family is dealing with a divorce or separation.

Dispute Resolution Outside of Court

The Divorce Act (as well as other family law legislation in Saskatchewan) urges families to try a dispute resolution process outside of court first, if appropriate. These processes can include mediation, collaborative law, and the assistance of parenting coordinators.

Child-Centered Language

A big update is that the often-confusing terms “custody” and “access” have been replaced. Now there is language that focuses on the needs of the children. Instead of “custody,” the new term is “decision-making responsibility” when talking about the authority of a parent to make important choices which shape the life of the child – for example, where the child will go to school, what health care the child should receive, and in what religious, cultural, or language groups and extra-curricular activities the child will participate.

Instead of “access,” the term “parenting time” is used to refer to the time a child spends in the care of each parent. When a child spends time with another important person in their life who is not a parent, such as a grandparent, the term is now “contact.”

Decision-making responsibility” and “parenting” will also be the new terms used in other laws in Saskatchewan which deal with family matters.

Emphasis on Best Interests of the Child

When making a decision about parenting arrangements, judges consider the “best interests of the child” to be the most important thing. Through the tough time of a divorce, a child needs stability and the support of the whole family. The Divorce Act emphasizes this by setting out clearly what those “best interests” can be, based on the unique situation of each child. They include:

  1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. 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;
  3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  4. the history of care of the child;
  5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. any plans for the child’s care;
  8. 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;
  9. 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;
  10. any family violence and its impact on, among other things,
  11. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  12. 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
  13. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. (Divorce Act, s. 16(3)).

Anti-Violence Focus

The Divorce Act also recognizes that when there are family problems, there is the potential for violence against vulnerable family members (including pets). Family violence can be not only physical, but also psychological, emotional and/or financial. Even violence which does not constitute a criminal offence could still be considered violence under the Divorce Act. A child can also be harmed by witnessing violence or suffering threats of violence, so the prevention of exposure to violence is a priority for looking after the best interests of the child.

New Rules About Moving

If one parent is planning to relocate, and if that move could significantly impact the current parenting arrangements or a child’s relationships with others, the Divorce Act sets out new rules to follow. For example, the parent intending to move must make sure that proper notice is given to the other parent at least 60 days before the planned move, including new address information and a proposal for how the parenting arrangements could be modified. The other parent then has an opportunity to make a formal objection to the move. If, however, there is fear for the safety of a parent or a child because of family violence, the court may make an exception to the notice requirements. This information is only a summary of the law and is not legal advice of any kind. If you have questions about how the changes to the Divorce Act and other Saskatchewan laws related to families could affect you, please contact Darca Tkach at Gates Law.

Family Law

Mitigating spousal matters, including children custody & parental arrangements, separations & divorces, and prenuptial/post-nuptial agreements.

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