by Jaskiran Bajwa
Effective March 1, 2021 there are significant changes being made to the Divorce Act. These changes will affect everyone whose proceedings started ahead of March 1, 2021 that are still ongoing.
There has always been an obligation on a party applying to vary a non-interim Parenting Order or Child Support Order to prove that there has been a material change in circumstance. The legislation at section 35.7 is clear that these Divorce Act changes do not constitute such a change.
It is important to note that there are no substantive changes to calculating child or spousal support.
Below are some of the biggest changes relating to the most common issues in a family law dispute.
The court will not longer use the term “custody” and “access” when describing parents’ roles. Under Alberta’s Family Law Act, non-married couples have been using “parenting time” and “decisions” for quite some time. The Divorce Act will now follow similar verbiage under sections 16.1-16.3 by referring to “parenting time” and “decision-making responsibility”, respectively.
Prior to the changes, there was a presumption of maximal contact with both parents if they were willing and able. This will no longer be the case. As of March 1, 2021 the consideration will simply be setting parenting time that is consistent with the best interests of the child. The child’s physical, emotional, and psychological safety, security, and well-being are the primary considerations as indicated in section 16(2). The new changes go one step further and now set out a non-exhaustive list at section 16(3) to consider when determining what is in the child’s best interest:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) 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;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) 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;
(i) 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;
(j) 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
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Pursuant to section 16.6(1), the Court must include a parenting plan that is agreed to by the parties in any Parenting Order or Contact Order unless it not in the best interests of the child to do so, in which case the Court may modify the proposed parenting plan. This gives the parents more control over the situation as the Court recognizes that generally the parties are best equipped to decide what is in a particular child’s best interest.
The Divorce Act will also allow the Court to direct parties to attend a family dispute resolution process, subject to provincial law. It is important to note that in the recent case of Stuve v. Stuve, 2020 ABCA 467 the Alberta Court of Appeal held that parties that have commenced litigation in Alberta may not be required to participate in private arbitration without both parties’ consent. This means that the common law in Alberta supports the idea that Albertan parties cannot be directed to attend a binding family dispute resolution process unless it is consented to by both parties.
Courts will also not describe decision-making responsibilities as only “sole” or “joint”; instead, decision-making responsibilities relating to significant decisions about a child’s wellbeing can be:
a. Solely one parent’s for any given category of decision-making;
b. Joint between both parents for any given category of decision-making; and
c. Divided between parents (i.e. parents have sole decision-making relating to different categories).
In making these changes the Court will make no presumptions as to what is in the child’s best interest. It will always be a fact-based analysis to determine how decision-making responsibilities should be allotted.
A significant new addition to the Divorce Act is the ability for non-parents to apply for a Contact Order pertaining to a child under section 16.5. This would most likely be used by former stepparents who wish to maintain a relationship with the child or grandparents who are no longer having the same access they are used to by virtue of the parents’ divorce. It is important to note that non-parents must obtain leave of the Court for bringing an application for a Contact Order.
A Contact Order will indicate what contact the party and child will have, such as phone calls, video calls, e-mails, and/or visits. It can also set out:
a. Any terms to the contact;
b. Whether it the contact is supervised or unsupervised; and
c. Whether the party can take the child out of a specific geographical area.
As of March 1, 2021, a parent who has parenting time or decision-making responsibility under a Court Order granted under the Divorce Act that intends to move shall follow a specified process. This process requires that the party provide notice to any party that has parenting time, decision-making responsibility, or contact under a Contact Order with respect to the child that the party intends to relocate.
The notice of relocation must be in writing at least 60 days before the date they expect to move and provide certain information as set out in section 16.9(2) It is important to note that this obligation to notify the other party(ies) only comes into play when the relocation will have a “significant impact” on relationships as defined in section 2(1). If the relocation is deemed to have the potential for a significant impact, then the one exception regarding providing any relevant party notice is in situations of family violence.
Once the appropriate notice is given, a party that seeks to relocate with the child may do so as of the date indicated in the notice as long as:
a. The Court so authorizes; or
b. The recipient party has not objected to the notice within 30 days and there is no Order prohibiting relocation.
A party may object by court application or a specific form, found here.
If a party objects, then new burdens of proof come into play:
s. 16.93(1): If the parties have a Parenting Order or agreement that grants both parties substantially equal parenting time and it is followed, then the burden is on the party seeking to relocate the child to show that it is in the child’s best interest.
s. 16.93(2): If the parties have a Parenting Order or agreement that grants the party seeking to move substantially more parenting time and it is followed, then the burden falls on the party opposing the relocation to prove such a move would not be in the child’s best interest.
If the parties do not fall under (1) or (2), then the burden is on the party seeking to relocate the child to show that it is in the child’s best interest. It is also important to note that the court has the ability to waive the burdens under (1) and (2) if the parties have an Interim Order that has not been treated like a more permanent order by the parties for a significant period of time.
When considering whether a relocation is in the best interests of a child, in addition to the criteria set out in section 16(3), the Divorce Act adds seven additional criteria under section 16.92(1):
a. the reasons for the relocation;
b. the impact of the relocation on the child;
c. the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
d. whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
e. the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
f. the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
g. whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
For the first time, family violence is defined in the Divorce Act. It is defined as “any conduct, whether or not 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 — and includes:
a. physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
b. sexual abuse;
c. threats to kill or cause bodily harm to any person;
d. harassment, including stalking;
e. the failure to provide the necessaries of life;
f. psychological abuse;
g. financial abuse;
h. threats to kill or harm an animal or damage property; and
i. the killing or harming of an animal or the damaging of property”.
With this definition the Court has been directed to have an enhanced focus on the impact of family violence on a child, including additional criteria under section 16(3)(j) and (k) as set out above when considering Parenting Orders and Contact Orders. Family violence also removes the requirement to provide notice of relocation as discussed above.
The changes to the Divorce Act are comprehensive and may have unforeseen effects. Our lawyers are equipped and prepared to deal with these changes and to help you navigate your divorce. Contact us today for a free consultation to see how we can help you with your divorce.