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Bill C-78 - Divorce Act Amendments

The Parliament of Canada is making changes to the Divorce Act. The current projection is that the changes will become effective in June of 2020.

The objectives of Bill C-78 are to promote children's best interests, address family violence, reduce poverty and make Canada's family justice system more accessible and efficient.

The amended Divorce Act will list the factors the Court must consider to determine the best interests of children.

Standard language in the Divorce Act will be revised. "Custody" will become "decision making responsibility". "Parenting time" and "access" will become "parenting time". Non-spouses can apply for "contact time" with a child with leave of the Court. This language is already used in the Alberta Family Law Act.

The amendments to the Divorce Act will codify the law related to relocation or a parent's decision to move. The parent who is intending to move must give 60 days' notice of relocation in writing and in a prescribed form. There will be some exceptions to this notice requirement such as in cases where there is a risk of family violence. The other parent must provide a response in a prescribed form within 30 days.

There will be three-way burdens/presumptions related to relocations. For a parent with "substantially equal parenting time", the burden of proof that it is in the child's best interest to move will be on the parent seeking the relocation. There will be a presumption against the move in that case. For a parent with a "vast majority of parenting time", the burden of proof that it is not in the child's best interests to move will be on the parent opposing the relocation. There will be a presumption in favour of the move in that case. In all other circumstances, both parties will bear the burden to show whether or not it is in the child's best interests to move with the relocating parent.

It will be inappropriate for the Court to ask the "double bind" question, which is: "Will you move without your child?"

It is anticipated that including relocation provisions in the Divorce Act will decrease litigation and make outcomes more predictable. However, there is likely to be legal argument regarding the definitions of "substantially equal time" and "vast majority of time".

There will be five new duties for parties under the Divorce Act:

1. exercising one's responsibilities in the best interests of the child;

2. protecting children from conflict;

3. where appropriate, attempting to resolve matters through dispute resolution such as mediation, arbitration, parenting coordination, negotiation and collaborative law;

4. providing complete, accurate and up-to-date information regarding income and asset disclosure and information about other Orders and proceedings (e.g. criminal proceedings); and

5. complying with Orders until they are no longer in effect.

It will be important to contact a lawyer for legal advice regarding how the amendments to the Divorce Act will affect you and your family.

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