For thirty-six years, the federal Divorce Act has, more or less, dictated the divorce process for couples in Alberta – working alongside the related guidelines included in Alberta’s Family Law Act.
While some changes were made down the years, 2020 saw some major updates to federal divorce laws along with several other family statutes.
Most changes were due to come into effect in July 2020 but were delayed until March 2021 due to the COVID-19 pandemic.
Here we take a look at what the main changes to the Divorce Act are and what they might mean to you if you are planning to divorce in Alberta.
Bill C-78 and Alberta’s Divorce Act update
The major changes to the Divorce Act are discussed in more detail in the following sections, but they can be summarized as follows:
1. Language and terminology updates
Some important changes have been made to the type of language used in legal cases related to what used to be called “child custody” and “access”.
2. Promotion of alternative dispute resolution methods over litigation
Alternative dispute resolution processes (ADRs) include divorce mediation, collaborative family law, arbitration, co-parenting counselling, and judicial dispute resolution.
Rather than pushing for litigation, lawyers must inform clients that these alternative resolution methods and family justice services can help prevent a long, drawn-out court battle.
3. Redefinition of the “best interests of the child”
The best interests of the child have always been the guiding principle for adjudicators when deciding custody issues.
The new laws outline a defined set of factors that judges must consider when determining what constitutes the child’s best interests.
4. Family violence definition and guidelines for judges
The 2020 amendment to the Divorce Act includes a definition of family violence, compels judges to consider any history of family violence when making parenting orders, and provides a list of factors that must be considered when making decisions.
5. New laws for parents who relocate
Parents who want to relocate have always been problematical for child custody and parenting decisions.
Following the recent changes, either parent needs to provide 60 days’ written notice to the other parent if they intend to relocate. This provides an opportunity for the other parent to legally object to the relocation. Again, the best interests of the child are paramount to such cases.
Parenting time and changes to the language used
Some of the previous terminology used was considered too potentially inflammatory when discussing parenting issues.
As such, the revised version of the Act makes several changes to the terminology used, most notably:
- “Parenting time” replaces “access” for a spouse
- “Decision-making responsibility” replaces “custody”
- “Contact order” is used for third-party time with a child
New court orders made in Alberta must now reflect these changes and your family lawyer may also start adopting these terms.
What are the “best interests” of the child in Alberta?
Priority is given to the best interests of the child in all parenting decisions – that means the child’s physical, emotional and psychological safety, security and wellbeing.
Updates to the 2021 Divorce Act break down the factors that the judge must consider, including the following:
- The ability of each spouse to adequately care for the child
- The nature of the child’s relationships with parents, siblings and other important people in his or her life
- Each spouse’s willingness to encourage the child’s relationship with the other spouse
- The child’s preferences
- The child’s cultural and linguistic upbringing (indigenous heritage included)
- Any civil or criminal court actions/orders that are relevant to the well-being of the child
- History of family violence
Parenting time and “best interests” of the child
The amendments to the Act make it clearer about the principle of a child spending as much time with each spouse as possible.
That was always presumed to be the best possible scenario, and it remains the preferable option providing it is consistent with the “best interests of the child” principle.
Family violence defined in 2021
A good example of where spending time with a parent may not be in the child’s best interests is if there has been any history of violence in the family.
The 2021 version of the Divorce Act addresses family violence in detail and provides the following definition:
“Family violence means any conduct, whether the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct…”
The Act lists some examples of family violence and states that the nature, seriousness, and frequency of the family violence must be considered when making parenting decisions.
A criminal offence does not need to have occurred. If there is coercive or controlling behaviour or physical, emotional or psychological harm has been caused to the child, this is enough for it to impact the judge’s decision.
Relocating parents and the Divorce Act 2021
Under the new regulations, parents who intend to relocate must provide 60 days’ written notice to the other parent or anyone with decision-making responsibility for the child. This provides adequate time for the other parent to mount a legal challenge to the relocation if necessary.
The new address, contact information for the parent/child and the date of the move must all be included in the written notice. The only exception is if there is a risk of family violence and a court order absolves the relocating parent of the responsibility to provide this notice.
Also, under the alterations to the Act, any change of residence must be notified in writing, even if it does not impact the parenting responsibilities of either parent.
In all cases, the best interests of the child are the deciding factor. Any court in Alberta that reviews the issue of relocation must consider the following factors:
- The reasons for the relocation
- The impact of the relocation
- The amount of time spent with the child by each person with parenting time
- Whether adequate notice was provided
- Orders or agreements specifying a certain geographic area
- How reasonable the proposal is
- Compliance with family law obligations
If both parents share equal responsibilities for the child, the burden of proof rests with the relocating parent to show that the move is in the best interests of the child.
If the child spends most of the time with the relocating party, the burden of proof rests with the non-relocating parent to show that it is NOT in the best interests of the child.
What new obligations do Alberta parents have?
As of March 2021, parents in Alberta must abide by some new guidelines concerning parental responsibilities under the new version of the Divorce Act.
These can be broken down into five main considerations:
- Best interests of the child: parents must exercise their responsibilities (during parenting time and decision-making for the child) in the “best interests of the child”
- Protection: parents must shield their children from any conflict that may arise as a result of divorce proceedings
- Resolving disputes: Where appropriate, parents must attempt family dispute resolution methods to resolve matters (negotiation, divorce mediation, divorce arbitration, etc.) – unless there is family violence to consider
- Providing information: if necessary, parents must provide accurate and up-to-date information on income and assets/debts as well as relevant information on any relevant court proceedings/orders to each other
- Compliance: parents must follow court orders until they are no longer in effect
If you are unsure of your obligations, responsibilities and rights under the changes to the Divorce Act, speak to a divorce lawyer at Jennings Family Law in Calgary for a confidential case evaluation.