On February 6, 2019, the House of Commons completed its third reading of and passed Bill C-78. The focus of the Bill is to protect families and children from negative outcomes resulting from divorce and separation. Bill C-78 proposes amendments to four acts, but perhaps the most talked about are the much-needed updates and reforms to the now 34-year-old federal Divorce Act. Importantly, the Bill codifies existing case law and best practices already implemented by Canadian family law lawyers, as well as provides clear guidance on existing grey areas, such as the relocation rights of parents. If the Bill is implemented in its current form, we can expect the following five changes to the Divorce Act:
- Updated Terminology
The Bill will update the language used throughout the Act, introducing child-focused terminology and removing terms thought to be outdated and polarizing, like “custody” and “access.” A parent’s right to “maximum contact” often led to misunderstanding, and the new term will be “maximum parenting time.”
- Emphasis on Methods of Alternative Dispute Resolution
The amendments promote more cost-effective and lasting solutions for family law disputes by encouraging the use of alternative dispute resolution processes over the court system.
- Strengthened Importance of the Child’s Best Interests
The proposed amendments also strengthen the importance of considering the child’s best interests. If the Bill becomes law, courts will be required to determine time spent with each parent in a way consistent with the best interests of the child. Courts will also be required to weigh a child’s views and preferences in its determination of that child’s best interests.
- Assistance Provided to the Courts in Navigating Family Violence
The Bill will introduce measures to assist courts in navigating issues of family violence. These measures include requiring courts to consider both the impact of family violence in determinations of the best interests of the child, and the possible imposition of civil or child protection orders when the circumstances give rise to such consideration.
- Restricted Relocation Rights of Parents
Finally, the amendments propose restricting the relocation rights of parents where the relocation is opposed by the other parent. Depending on the allocation of parenting time under the current parenting arrangement, the onus of demonstrating whether the relocation would or would not be in the best interests of the child would shift to a parent as determined on a case-by-case basis.
The Bill is currently before the Senate in its Second Reading. So far the Bill has not been subject to amendments by the Senate. If the Senate and the House of Commons agree on the same form of the Bill, then we can expect Royal Assent to occur shortly following the Senate’s Third Reading, bringing Bill C-78 officially into force.
You can access the most recent version of the Bill C-78 and follow its status here: http://www.parl.ca/LegisInfo/BillDetails.aspx?billId=9868788&Language=E
The Legislative Summary published by the Library of Parliament in October, 2018 provides a useful overview and can be accessed here: https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c78-e.pdf