EDITOR’S NOTE | Changes to Canada’s Divorce Act now come into effect on March 1, 2021 (not July 1, 2020).
Two big changes to the legislation on family law are coming next year: one that’s important if you live in Alberta and another that’s important if you’re getting divorced no matter where you live in Canada.
Canada’s Divorce Act
The federal Divorce Act applies to married couples who are separating and want to get divorced. The Act is getting a pretty thorough overhaul that takes effect on 1 July 2020. The most important changes involve the language the Act uses to talk about the care of children after separation, how the court addresses family violence and what happens when someone wants to move away after separating.
Parenting after separation
The current Divorce Act talks about the care of children in terms of custody and access. Custody is mostly about how spouses make decisions about their children. Someone with “sole custody” has the right to make these decisions without consulting the other spouse. When spouses have “joint custody”, they both have the right to make these decisions and usually have to talk to each other first. Access is about how the children’s time between the spouses’ homes is scheduled and usually refers to the children’s schedule with the spouse who has the least amount of time with them.
On 1 July 2020, however, the Divorce Act will start talking about decision-making responsibility, parenting time and contact.
Decision-making responsibility means a spouse’s duty to make important decisions about their child’s life, including about the child’s health, education, culture, language and extracurricular activities. Under section 16.3 of the Act, decision-making responsibilities can be shared between spouses or allocated to just one spouse. Most of the time, I expect, spouses will share decision-making responsibilities. The circumstances that might justify an order for sole custody under the current Act will justify the allocation of decision-making responsibility to just one spouse.
Parenting time means the time a child is in the care of a spouse. Each spouse has the sole authority to make day-to-day decisions affecting their child during their parenting time. Contact, on the other hand, means the time someone who isn’t a spouse has with a child, including grandparents and other important adults in the child’s life. People with contact do not have the right to make day-to-day decisions affecting the child.
Spouses can make parenting plans describing their agreement about how they will share decision-making responsibilities and parenting time, and about who can have contact with their child. The court will make parenting orders on these subjects if spouses can’t agree.
The best interests of the child
On 1 July 2020, … the Divorce Act will start talking about decision-making responsibility, parenting time and contact.The best interests of the child are the only consideration the court may take into account when making a parenting order, just as the best interests of the child are the only consideration when the court makes orders about custody and access under the current Divorce Act. Starting 1 July 2020, the court will have a long list of factors to take into account when deciding what is in a child’s best interests. These factors include:
- the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
- each spouse’s willingness to encourage the child’s relationship with the other spouse;
- the child’s views and preferences;
- the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
- the ability of each spouse to care for the child;
- the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
- the presence of family violence.
When considering these factors, the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.
Where family violence is an issue, the best interests of the child factors require the court to think about how the violence affects the ability and willingness of a spouse to care for the child. The court must also think about the appropriateness of making a parenting order that would require the spouses to cooperate with each other.
The court must also consider a list of other factors, which include:
- the nature, seriousness and frequency of the family violence;
- whether the family violence indicates a pattern of coercive and controlling behaviour;
- whether the violence was directed to the child or the child was indirectly exposed to the violence;
- the risk of physical, emotional and psychological harm to the child; and
- any steps taken by the person committing the violence to prevent future violence and improve their ability to care for the child.
Moving with or without a child
Beginning on 1 July 2020, the Divorce Act will have new rules about what happens when someone wants to move away, with or without a child. If a spouse wants to move only a short distance away, the spouse will be required to give written notice to anyone who has parenting time, decision-making responsibility or contact with the child. The notice must state the date when the move will happen and the address of the new home. However, the rules change if the spouse wants to “relocate.”
The federal Divorce Act applies to married couples who are separating and want to get divorced.Under the updated Act, relocation means a change in the home of a child or a person with parenting time or decision-making responsibility that will have a significant impact on the child’s relationship with someone who has parenting time, decision-making responsibility or contact. When a move qualifies as a relocation, the person who wants to move must give 60 days’ notice of their intention to move to anyone who has parenting time, decision-making responsibility or contact with the child. The notice must say when the move will happen, the address of the new home and contain a proposal about how parenting time, decision-making responsibility or contact will work after the move.
After receiving notice of a relocation, someone with parenting time or decision-making responsibility has 30 days to object to the relocation. It’s important to know that:
- the relocation can happen if the court approves the move;
- the relocation can happen if someone with parenting time or decision-making responsibility fails to object to the move; and
- people with contact don’t have the right to object to a relocation.
When someone objects to a relocation, the court must consider the best interests of the child and a list of other factors, including:
- the reasons for the move;
- the impact of the move on the child;
- whether there is a court order, an arbitrator’s award or an agreement between the spouses that restricts where the child can live; and
- the reasonableness of the proposal about how parenting time, decision-making responsibility or contact will work after the move.
The court cannot think about whether the person who wants to move would still move if they could not take the child with them.
The court can waive the requirement to give notice of moves that do and do not qualify as relocations if there is family violence.
Resolving problems outside of court
The updated Divorce Act will also encourage people to resolve disputes about parenting after separation, child support and spousal support out of court. Options for resolving disagreements outside court include negotiation, mediation and collaborative negotiation.
Lawyers will also be required to encourage their clients to resolve their disagreements outside court.
Legal advice about the changes
It is important to speak to a lawyer to get legal advice if you think that any of the changes to the Divorce Act might affect you. This is especially true if you have a court case under the Divorce Act that won’t be wrapped up by 1 July 2020 (when the changes take effect) or if you might be dealing with a problem that qualifies as a relocation.
You can get more information about the changes to the Divorce Act from the Department of Justice, including the explainer prepared by the Department for Parliament. You can also read a more technical overview of the bill changing the Divorce Act (“A Brief Overview of Bill C-78”) from the library available on my website.
Remember that the changes to the Divorce Act only apply to married couples who are separating and want to get divorced!
Alberta’s Family Property Act
Alberta’s Matrimonial Property Act also applies only to married couples, but that’s all going to change on 1 January 2020 when the Act will be renamed as the Family Property Act.
When these changes become law, the new Family Property Act will apply to married couples as well as unmarried couples who qualify as “adult interdependent partners.” This is a really important change because currently only spouses can use the Act to figure out how property should be divided when they separate. People in unmarried relationships have to rely on the rules of equity and the common law to get an interest in property owned by the other person, and the results of those rules are always hard to predict. The results of claims under the Family Property Act, on the other hand, are much easier to figure out and are more easily resolved without having to go to court.
Under the Adult Interdependent Relationships Act, an adult interdependent partner is someone who has:
- lived with someone else in a “relationship of interdependence” for at least three years;
- lived with someone else in the same kind of relationship for less than three years if they have had a child together; or
- signed an adult interdependent partner agreement with someone else.
The Act says that a relationship of interdependence exists when two people share each other’s lives, are emotionally committed to each other and work together as an economic and domestic team. (This way, people who are roommates never need to worry about becoming adult interdependent partners!) People more commonly describe adult interdependent partners as “common-law” spouses, even though they’re not legally married.
Who is affected by the change?
What’s even more significant about this change is that it will apply to everyone who qualifies as an adult interdependent partner on 1 January 2020, whether they want it to or not.
Because of the big differences currently in property rights between married couples and unmarried couples, some people decide to avoid getting married in order to avoid having to share their property after separation the way married couples do. However, if you are in an adult interdependent relationship on 1 January 2020, or enter one after that date, the Family Property Act will apply to divide your property if your relationship ends.
In Alberta, the property a couple owns when they separate is broken down into three groups.
First, there’s the property that you get to keep for yourself, which includes the property you brought into the relationship and some kinds of property you might get during the relationship (including gifts from other people, inheritances and court awards). Someone who brought property into the relationship gets to keep the value of that property at the date the relationship began. Someone who gets a gift, an inheritance or a court award during the relationship gets to keep the value of that property on the date it was received.
… if you are in an adult interdependent relationship on 1 January 2020, or enter one after that date, the Family Property Act will apply to divide your property if your relationship ends.Next, there’s the property that the couple shares in some way, although not necessarily equally. This includes the increase in the value of property brought into the relationship and the increase in the value of any gifts, inheritances and court awards that were received during the relationship. It also includes new property acquired from the sale of this property as well as gifts received from the other person.
Finally, there’s the property that the couple are presumed to share more or less equally. This is all of the other property that the couple acquired during the relationship and is usually property acquired from employment income.
Even though this seems complicated, the law about how these different groups of property are shared – and not shared – is well understood by lawyers and judges. (In a nutshell, you get to keep the value of what you bring into a relationship and have to share the increase in value of that property as well as the new things you get during the relationship.) This will make dividing property between unmarried people much easier than how the rules of equity and the common law currently work.
Legal advice about the changes
It is important to speak to a lawyer to get legal advice if you think that any of the changes to the Family Property Act might affect you, especially if you are, or are going to be, living in an adult interdependent relationship when the law changes on 1 January 2020. You should think about asking a lawyer about a cohabitation agreement, also called a living-together agreement, which might help you control the impact of the new plan for dividing property between adult interdependent partners.
You can get more information about the changes to the Family Property Act from Alberta’s Ministry of Justice. You can also read a more technical overview of the bill changing the Matrimonial Property Act (“A Brief Overview of Bill 28”) from the library available on my website.