The new Divorce Act came into effect March 1, 2021.  It has made sweeping changes to the divorce legislation in Canada.  In this 3-part series, we will go through some of the main changes from the old system to the new one.

What will each part cover? 

I’ve broken this topic down into 3 articles – because this legislation makes such significant changes to the way that divorce is handled legislatively in our Country – I wanted to take the time to not only go through some of the changes, but to address how it will impact families.

• Part I – Terminology around parenting and the focus of the legislation on relationships
• Part II – all about the Best Interests of the Child – how that’s outlined in the new Act, including a brand new full section about addressing the impact of family violence on children and on parenting
• Part III – brand new section on relocation

Reminder: this topic covers issues for parents who are married and therefore fall under the federal Divorce Act.  Another exciting development for unmarried parents is that effective on March 1, 2021 Saskatchewan also brought into effect a new Children’s Law Act 2020 which mirrors a lot of the principles in the Divorce Act.  In Alberta, these principles we will cover today have been part of the legislation since it came into force in 2005.

How does the new Divorce Act deal with the phrase “best interests of the children”?

There’s similar language to old and the new Divorce Act – in making an order about children, the court is “only to consider the best interests of the children”.  In the old Divorce Act, there was no list of what the “best interests” meant.  That list has been developed over the years by the Courts.  The new Divorce Act now has a non-exhaustive list of the  best interests of the children. 

Can you go into that list of the “best interests of the children” – just to give our audience a preview of what you mean

There’s a long list with starts with the #1 priority – safety, security and well-being of the child above all other considerations.

The rest of the list of 11 items is in no particular order of priority

• Child’s needs, given the child’s age and stage of development – this deals with individualizing children’s issues – things like temperament, physical and psychological needs, or even disabilities
• Nature and strength of the child’s relationship with each spouse, siblings, grandparents, other important persons – It recognizes the stability that these extended relationships can have for children during their transition into two homes
• Each parent’s willingness to support the development & maintenance of the child’s relationship with the other parent – Aka the “friendly parent rule”
• History of care of the child – Courts will look at the roles that each parent played before the separation occurred, and their knowledge & ability to cope with things like daily routines & health-issues
• Child’s views & preferences – This will depend on a child’s age and maturity
• Child’s cultural, linguistic, religious, and spiritual upbringing & heritage, including Indigenous upbringing and heritage – Court will look at the willingness of a parent to maintain & promote a link to these things
• Plans for a child’s care – The courts will consider any parenting plan developed by the parents or proposed by one parent
• Ability & willingness of a parent to meet the needs of a child – it focuses on whether a parent is unwilling or unable to handle the health, safety or well-being of a child, and assesses strengths and limitations of a parent
• Ability & willingness for co-parents to communication & co-operate – Shielding children from their parents’ conflict is a focus of this new legislation
• Family violence
• Other relevant criminal or civil proceedings

Let’s talk about Family Violence a little more – what is the impact of family violence on how the courts will look at parenting? 

The definition of “family violence” is expansive – it’s not tied to criminality – it looks at members of the household who are conducting themselves in a way that’s violent, threatening, or constitutes a pattern of coercive and controlling behaviour – causes family member to fear for own safety or that of another person

The following is a non-exhaustive list of types of “family violence”: of course there’s things you’d think of like physical or sexual abuse or harassment, but it goes even further to include psychological & financial abuse, failing to provide the necessaries of life, and abuse towards animals or property.

It validates that a child’s direct (child seeing/hearing violence) or indirect (child seeing a parent fearful/injured) exposure to family violence is in and of itself family violence and something that children should be shielded from.

Impact of family violence is required to be considered when assessing the best interests of the children– such things as: 

• Ability / willingness of person engaged in family violence to care for / meet needs of the child
• Appropriateness of making an order that would require cooperation of the victim and the perpetrator – could lead to more violence

Courts will look at the nature & seriousness of the violence, whether there’s a pattern of violence, and whether there’s been steps by the perpetrator to prevent further violence and to improve their parenting.