Changes to Canada’s Divorce Act: what you need to know
The child and takes the child’s environment into account rather than imposing very literal interpretations of the law,” says Mandy Alessandrini, a lawyer in litigation and family law at Devichy Lawyers.
Officially, the updated Divorce Act does not apply to de facto unions or civil unions (which exist only in Quebec). However, Mandy Alessandrini believes that Quebec judges will draw inspiration from the new law in their decisions. “Otherwise, it would create too big a difference between children whose parents are married and other children,” she explains.
The new law is based on completely new terminology. In particular, it does away with the notions of child custody and parental access. Instead of “legal custody”, it talks about “decision-making responsibility”, or the right and responsibility to make important decisions affecting the child. Similarly, instead of “physical custody”, it uses “parenting time” to refer to the number of days a parent may spend with their child. As Dominique Lettre, notary, mediator and arbitrator at Lettre & Brown explains, “the law does not encourage shared parenting time by default and instead looks at what is best for the child.”
In addition, the new law uses the term “parenting order” to designate the responsibilities, rights and obligations involved in the parent-child relationship. It also provides for a “contact order” allowing a person who is not the child’s parent to request contact with the child. “Article 16 of the Bill sets out numerous provisions that clearly outline what judges must take into account when defining the best interests of the child,” Mandy Alessandrini explains.
“Divorce is always a financial drain for both parties.
Suddenly you have to pay two separate bills for rent, electricity, heating, TV and so on.” — Dominique Lettre
The child’s best interests first
Dominique Lettre points out two major changes in the law. The first relates to cases where one parent wishes to move with the child to a location far away from the other parent. “That is a major source of conflict during a separation,” she explains.
Previously, a parent who decided to relocate with a child could inform the other parent at very short notice. Now, they will be required to provide their former spouse with 60 days’ notice in the event of a long-distance relocation. The former spouse would then have 30 days to object to the relocation, and a court would decide whether to authorize the move based on the best interests of the child.
The other major change concerns family violence. Previously, a parent who engaged in violent conduct towards their spouse, but not towards their child, could request parenting time after a divorce. The new law recognizes that children can be exposed to violence even if they are not subjected to physical abuse, and stipulates that this factor must be taken into account when awarding parenting time.
Cooperation over confrontation
The new law strongly encourages mediation, negotiation and collaborative law as a means to settle family disputes out of court. “It forces lawyers and legal advisors to recommend these alternative dispute resolution strategies, whereas previously they simply had to inform their clients that these avenues exist,” explains lawyer and mediator Louise Poliquin. However, this does not apply in cases of family violence or very serious conflict.
According to Louise Poliquin, mediation has a number of benefits for couples going through the process of divorce or separation. One key advantage is financial in nature. “A divorce involving a dispute can drag on for years and cost both parties thousands of dollars whether the settlement is made in court or out of court, while mediation often costs under $1,000,” Louise Poliquin explains.
This option is particularly advantageous in Quebec, where the government offers financial assistance to couples who opt for mediation. Specifically, it offers five hours of free mediation to couples who have minor or dependent children. Couples wishing to revise the terms of their divorce or separation judgement are also entitled to 2.5 hours of paid mediation time. Since February 18th, 2021, couples who do not have minor or dependent children together are entitled to 3 free hours of family mediation under a new pilot project.
As Louise Poliquin points out, parents also retain a lot more control with a process like mediation. “In court, you present your evidence before a judge who doesn’t know you, and the judge makes the call. It’s not rare for one parent, or even both parents, to be disappointed with the decision, and this can create resentment between the parties.”
She sees mediation as a way of shifting the focus away from “settling accounts” and towards planning for the future. It’s an opportunity to sit down and build a new relationship. According to a 2017 survey conducted by SOM for Quebec’s Ministry of Justice, 84% of parents who opted for this approach reached an agreement with their former spouse.
Dominique Lettre encourages financial advisors to get informed about the benefits of mediation and the funding programs available. “They can then demonstrate the advantages of these strategies to their clients, especially from a financial standpoint. This is important because divorce is always a financial drain for both parties. Suddenly you have to pay two separate bills for rent, electricity, heating, TV and so on.”
In such a situation, the advisor must inform his or her clients of the financial consequences of the divorce or separation on their investments, the designation of beneficiaries of insurance policies and the budget. If the advisor continues to serve both parties of the couple, he or she must also abide by several ethical rules, including keeping up to date with the client's knowledge and maintaining independence. Most importantly, the advisor must avoid discussing the financial or personal business of either client with anyone else.
67% OF COUPLES MARRIED SINCE 1990 WILL BE DIVORCED BY 2030
1970s: +50,000 MARRIAGES/YEAR
SINCE 2005: 22,000 – 23,500 MARRIAGES/YEAR
According to the Institut de la statistique du Québec (2020)