First update to federal family law statutes since 1986

On May 22, 2018, the federal government introduced Bill C-78, the first update to family law legislation in over two decades. 

Bill C-78 amends numerous family-law related statutes, including the Divorce Act, the Family Orders and Agreement Enforcement and Assistance Act and the Garnishment, Attachment and Pension Diversion Act

Federal Justice Minister Jody Wilson-Raybould stipulated four primary goals of the very child-focused bill: First and foremost, the overhaul aims to promote the best interests of the child. Secondly, it addresses family violence, something that, to date, has not been recognized by family courts. Thirdly, it seeks to reduce child poverty, and lastly it has the intention of making Canada’s family justice system more accessible and efficient

Best interests of the child 

For the first time, the bill elaborates on and defines the “best interests” of the child, going so far as to include a stipulation that the court shall give “primary consideration” to the child’s “physical, emotional and psychological well-being.” The bill also includes a non-exhaustive list of 11 factors to be considered in determining a child’s best interests. 

The 11 factors, enumerated in article 16(3) of the tabled bill are as follows: 

  1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

  2. the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

  3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

  4. the history of care of the child;

  5. the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained;

  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

  7. any plans for the child’s care;

  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

  9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

  10. any family violence and its impact on, among other things,

  • the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

  • the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

  • any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The bill would also establish guidelines for considering the best interest of the child when one parent wants to relocate with a child. This framework would include a notice requirement, it would create burdens of proof on parents who plan to relocate or who are opposed to a relocation, and it would also prohibit courts from considering whether the parent who intends to relocate the child would move without the child if the child’s relocation were prohibited.

The bill places an emphasis on less adversarial language and processes and in doing so replaces words such as “custody” and “access” with neutral terminology such as “parenting time” and “parenting orders”. The effect of this change is to move away from one parent feeling like they have won and the other feeling like they have lost. This simultaneously reduces the chances of the parties’ egos getting in the way of what is actually the best arrangement for the child. 

Gives courts measures to address family violence

Under Bill C-78, for the first time, courts would have to take family violence into account. Before making parenting, contact or support orders, courts would be obliged to consider any criminal orders involving one of the parties. Courts must that they assess the degree of severity and impact of the violence in question and determine how it may affect future parenting arrangements.

Seeks to reduce child poverty

One example of this is that the bill seeks to allow, in certain circumstances, the release of tax information to a court or provincial maintenance program in order to make sure that child support amount calculated is accurate. It would also allow child support to be recalculated at any time if needed, instead of on a fixed schedule. 

Making Canada’s family justice system more accessible and efficient

Last but not least, the proposed bill places great importance on dispute resolution and early intervention in order to avoid litigation and court time. It compels lawyers to encourage clients to use services such as mediation and suggests a number of administrative solutions for easier and more efficient access to justice. 

Click on this link to read about Me Spunt's opinion on the bill as published in Droit-Inc : http://www.droit-inc.com/article22577-Droit-de-la-famille-les-experts-saluent-la-reforme-mais-emettent-des-reserves

Sheri M. Spunt