A New Era in Family Law

Family Law & Bill C-78

In 2018, the Federal government introduced Bill C-78 (the “Bill”), which proposed significant changes to the law governing post-divorce parenting, specifically to the Divorce Act.[i]  These are the first amendments, with the exception of the Child Support Guidelines, to the Divorce Act since it came into force in 1985. The long awaited amendments modernize and clarify family law with a more child-focused approach, which include emphasizing the importance of alternative dispute resolution processes, recognizing the impact of parental conflict on children, and a much needed update in family law language.  

One of the more notable changes is the shift in the language. The use of terms such as “custody” and “access” created a “winner” and “loser” in parenting disputes. This in turn increased conflict between parents, which quickly overshadowed the best interests of the child. Needless to say, the language did not encourage settlement discussions when one parent was left feeling that they were “losing”.

Although many family law lawyers and judges have seized the use of “custody” and “access”, the Bill formally replaces the archaic language with the child-centric terminology of “parenting time” and “parental decision-making”. Parental decision-making responsibility is defined as the responsibility for making “significant decisions about a child’s well-being, including in respect of health, education, culture, language, religion and spirituality”.[ii] Parenting time is the time that a child of the marriage spends in the care of  either spouse or a person who stands in the place of a parent, such as a stepparent, whether or not the child is physically with that person during that entire time.[iii] The Bill places an onus on parents to work together and create a “parenting plan” on how to share decision making responsibility and time, but where parents cannot agree, a judge will make a parenting order.[iv] These changes call on the parties to work together and create a plan for their family post separation.  

Additionally, the Bill places considerable emphasis on the use of alternative dispute resolution processes. Section 7.6 of the Divorce Act, creates a positive obligation on parents and counsel to certify that they are aware of and understand the duties to explore dispute resolution processes outside of court to reduce parental conflict and protect children from harm.[v] The required certification is embedded within the original pleadings (i.e. the Form 8 Application). The Ontario courts have been provided with the power to direct parties to attend out of court family dispute resolution, subject to the provincial legislation.[vi] Family dispute resolution processes may include mediation and/or arbitration. These dispute resolution processes may not always be appropriate in every matter, for example, if there is a significant power imbalance between the parties, or a history of partner abuse.

Other important changes in the Bill include:

1. Establishing a non-exhaustive list of factors for the determination of the “best interests of the child”, including consideration of the views and preferences of the child and the willingness of each parent to support the child’s relationship to the other parent;
2. Measures to assist the courts in addressing family violence in the context of the best interests of the child in parenting disputes such as defining what constitutes “family violence”, and to make protection of the safety and well-being of the child a “primary consideration””; and 
3. Establishing a new framework for dealing with the relocation of a child (or parent).[vii]

What about Provincial Legislation?  

Provinces, such as British Columbia and Nova Scotia, have already incorporated some of the above-mentioned changes to language and an overall child-focused approach into their provincial legislation. In November 2020, Ontario introduced Bill 207, the Moving Ontario Family Forward Act, 2020, which incorporates a majority of the Federal amendments to the Children’s Law Reform Act. This bill came into force on March 1, 2021.

This legislation introduced many amendments, including jurisdiction of parenting issues across provinces and territories and efforts to become more in line with international law such the Hague Convention. The amendments are a concerted effort on the part of the provincial government to have family law legislation reflect evolving Canadian society.

If you have any questions how these legislative changes may impact your family law matter, please contact our family law department.

[i]Divorce Act, RSC 1985, c 3 (2nd Supp).

[ii] Section 2(1)

[iii]Ibid.

[iv]Section 16.1(1).

[v]Sections 7.2, 7.3, and 7.6.

[vi]Section 16.1(6).