Tuesday May 04 2021

General publication

Modifications To The Divorce Act

On March 1st 2021, new modifications to the Divorce Act have come into effect. In fact, these modifications were to come into effect on July 1st, 2020. However, with the Covid-19 pandemic, the federal government delayed the coming into force of the law. 

There are several changes to the Divorce Act beginning with the terminology that is to be used. In virtue of the new modifications, we no longer use the term “custody” and/or “visitation time.” These terms have been replaced by “parental time.”  As well, “parental authority” has now been replaced by “decision-making responsibility.” 

For the first time as well, Section 2(1) of the Divorce Act, includes a definition of family violence. In virtue of the Divorce Act, “family violence means 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; (“violence familiale”)

This is an important change to the Divorce Act, as the Courts can now take into consideration these factors in what would be in the best interest of the children in determining the parental time. 

As well, the modifications to the Divorce Act have also established parameters for the relocation of minor children. In virtue of Article 16.9 of the Divorce Act, the parents will have to inform the other parent in writing at least 60 days in advance of any proposed move. The parent will then have 30 days to accept or contest the proposed move in writing, and following the procedures provided by the Divorce Act.  If the parties do not come to an agreement, they will have to take the necessary procedures in the Superior Court, Family Division so that a judge may hear the case and decide if the relocation is in the best interest of the minor child. 

Finally, section 7.1 of the Divorce Act is also an important part of the modifications in that the concept of “best interests of the children” is protected. Section 7.1 of the Divorce Act reads as follows: 

7.1 “A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.”

The new modifications to the Divorce Act are important and have brought to light the issues of family violence.  With these modifications, the judges will now weigh the impacts of violence on the children when rendering parental time orders. 

As each case is different, it is important to speak to a Family Lawyer to obtain the necessary information pertaining to your specific situation. 

Gianina Fuschini, Attorney-at-Law

Alepin Gauthier Avocats Inc.

This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.