Changes to the Divorce Act: What You Need to Know

It has been more than two decades since the Divorce Act has seen changes. Effective March 1, 2021, the Act has been substantively updated to reflect new rules, tools, and more child-focused inclusive terminology. Among these changes are three specific areas related to children: Children’s Best Interest, Family Violence, and Reduction of Child Poverty. We’ll discuss each in turn.

In Saskatchewan, these changes have necessitated updates to the forms we use with the Court of Queen’s Bench, including the language as it relates to the traditional terminology of child centered matters such as custody and access.

Children’s Best Interest

The terms “parenting order,” “parenting time,” and “decision-making responsibility” replace “custody order” throughout the Act. Using language that reflects parenting arrangements in regards to children, rather than related to the custody of children, approaches these arrangements and decision-making authority in a more child-focused way.

The focus is now on the “task” of parenting. References to “access” have been replaced to reflect decision-making responsibility and parenting time. Historically, there was a focus on a custody parent and an access parent; these labels were often used (particularly in chambers) to designate a winner and a loser. Using neutral wording shifts the focus to the relationship between children and parents or caregivers.

Though not an exhaustive list, decision-making responsibilities include health, education, culture, and significant extracurricular activities. Others may be added after taking into account the child’s context and best interest.

Updates have also been made to the rules regarding relocations and change of place of residence following a separation or divorce, including updated criteria on when a move will be considered to be in a child’s best interest. These changes prioritize the best interests of the child, such that any person who proposes to relocate with the child must now provide a Notice to the Court that includes a proposal for new parenting and contact arrangements. The Act specifies the form, content, and timing for notice, as well as rules for objecting to a proposed relocation.

Family Violence

The updated Divorce Act defines family violence and conduct that constitutes family violence. Notably, the court will take family violence into account when making parenting orders as relevant to the best interest’s argument. In determining what is in the child’s best interest, the court must consider violence involving the people who are in the child’s family or a family-type relationship. This includes all people in the child’s household or in the household of one of the spouses.

Family violence includes physical abuse, sexual abuse, threats, harassment (including stalking), failure to provide the necessities of life, psychological abuse, financial abuse, threats to kill or harm animals and damage property, and the killing or harming of an animal or the damaging of property. Family violence is clearly defined in the context of what is in the child’s best interest. This new definition, not found in the previous Divorce Act, not only considers actual violent acts but also the child’s exposure to such acts.

Before making parenting, contact, or support orders, the court must first consider any other proceedings or orders involving any of the parties. This is done in an effort to diminish conflict in the family law and criminal courts as it deals with parenting time.

Reduction of Child Poverty

The updated legislation provides more tools to establish and enforce child support, such as releasing tax information federally. These tools improve efficiency and accessibility. Further, the updated legislation allows Provincial Administrative Services to perform some tasks previously assigned to the court, including recalculating support and allowing recalculation at any time. The variation of support when different jurisdictions are involved has been streamlined to allow only one court to be required in support-related disputes. Finally, the use of family dispute resolutions processes is encouraged; this is a theme found throughout the Divorce Act.

Naidu Legal offers complimentary 30-minute consultations to answer questions you may have with respect to changes to the Divorce Act or about the separation and divorce process in general. Please contact us at info@naidulegal.com to schedule your consult.