June 17, 2021

Top 10 things you need to know about the Divorce law changes

The Divorce law in Canada changed this spring. What do those mean for you?

There were some new changes to family laws that may affect you if you going through a divorce or separation. The changes to the Divorce Act came into force on March 1, 2021. Changes to federal support enforcement laws will come into force at different times over the next two years.

Learn more about the 10 top changes and how they affect you:

    The word custody has been used for years in relation to children. It meant that whoever had custody had the decision-making responsibility for a child. A lot of people confused the question of physically where a child lived with the idea of custody. People would say “I have joint custody” and really they meant they parented their child for half the time. Custody, as a word, caused multiple problems, so it is now gone from the federal Divorce Act. If you are married and separate now, you will not have a discussion about custody. The word is out of the law and the phrase now is decision-making responsibility.This makes much more sense as that is what custody did mean.As of March 1, 2021, what happens is parents need to resolve if they will have a joint arrangement for making and if not, who is going to be responsible for what decisions.The choices are now: sole, joint or divided decision-making responsibility.

    Courts will now make “parenting” orders and not “custody” orders. These orders will be about who makes the significant decisions on the child’s well-being. This includes decisions on health, education, culture, language, religion and spirituality and significant extra-curricular activities. If you are starting a court case now, just remember the language of “custody” is gone and do not put it on your court documents in divorce court.

    Family violence and it’s impact on children is emphasized in the new Divorce Act. There is a definition in the act of family violence that details nine different factors that outline conduct that is violent.This conduct does not have to be criminal. It can be by one family member to another which can cause one family member to fear for their own safety or for that of another person, including the child.The court is now directed by the law to consider family violence. There are new provisions on supervision of a parent when they have a child on parenting time as well as coordination between criminal cases, child protection cases and family court cases.
    Information is now able to be exchanged with the court and the Family Responsibility Office for child support. The arm of the provincial government that collects child support under Court orders and separation agreements is called the Family Responsibility Office. Often called FRO for short.This is the agency that garnishes those who owe child support and pay it to the recipient parent. The new Act allows the release of information to a family court from FRO to establish an accurate amount of child support. This is also available for those who are going to court to change their support or enforce on support.The court is now able to order garnishment of federal money, such as a tax refund, to satisfy court orders for such things as costs to see a child after one parent has moved (and not paid what they were supposed to) as well as expenses for the denial of parenting time.
    The grounds for a divorce, meaning the reasons you have to have to claim for a divorce are the same they have always been since the 1985 version of the Divorce Act.
    Previously the Divorce law used the word “access” when it was discussing how much time a child should be spending with each parent. People often used the phrase visitation. The language of access/visitation did not accurately reflect what was happening. The law is now changed such that there is a new phrase, parenting time. Parenting time as a phrase accurately reflects what a parent does with a child when they have their child – they parent them. The parent with parenting time has the “exclusive authority to make, during that time, day-to-day decisions affecting the child” as set out in section 16.2 (3). It is to be a time schedule that meets the best interests of the child.
    The Divorce Act used to say that other family members, other people, most often grandparents, could have “access” to a child. The language is now changed to say that if you are not a spouse or parent, then you can get a court order for “contact” with a child. This has to be in the best interests of a child. This is now set out in section 35.5 of the new law.
    Because the Divorce Act has changed, a multitude of court forms in Family Court in Ontario are changed. All the language of custody and access is gone and new language of Parenting decision making, Parenting orders and parenting time are in the new forms. If you are completing your own court forms, make sure you go to the Ontario court forms with the most recent updates. If you use old forms from a website that has not been updated your forms will be rejected and you will have to re-do them.
    If the court makes an order about parenting-decision making and parenting time, the parents now have a move restriction. You are now prohibited from moving away from the area with your child. This is completely new.If you are a parent who wants to move away from the area with your child, you are now required to give notice, in a set form, to the other parent if you plan to change your place of residence.The notice details you must give are laid out in section 16.9 of the Act. You must give the notice at least 60 days before the planned move. The only exception is in family violence cases. Take a look at what you need to do on the Justice Canada website. If you properly serve notice you may move if a court gives you permission or if the other parent does nothing to object within 30 days of you giving your notice. If you want to object, there is a prescribed form for that, or you have to bring a court application.

    The factors to be discussed are the reason for the move, the impact of the move on the child, what the current parenting time is, and others along with how reasonable the proposal is for the move.

    In section 7 of the new Act, there are new duties for parents. You must exercise your parenting responsibilities in the best interests of your child. You must protect your child from conflict. You are to try to resolve matters with the other parent through a process aside from court if appropriate. You are to give your financial documents to your spouse as required through a court which includes your up-to-date income information as well as asset and debt information. You must give information to your spouse about any criminal proceedings, as well as you must comply with all court orders.
    Where you live with your child is called “jurisdiction”. This means, for example, if you live in Ottawa and separate in Ottawa and you and your spouse and child still live in Ottawa, you would start your divorce court case in Ottawa. The new Act says that you should start a divorce court case in the court local to where the child’s habitual residence is. Previously the law reflected that you should start a court case in the area where a child had a “substantial connection”. Now it is “habitual residence”. This is in section 6.

There are multiple changes to court forms, with over 30 court forms needing changes due to all the new laws. It may seem confusing as to what you need to ask a court to do for you, and remember we are here to help if you need us.

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