Bill C-78 (the “Bill”) comes into force on March 1, 2021. It represents the first major changes to the Divorce Act (the “Act”) aside from the Child Support Guidelines, since the present form of the legislation came into being in 1985. Arguably, the Act sets the tone for the resolution of family law disputes regardless of whether jurisdiction for separating families is federal, provincial, or both.
Much has changed in Canadian society over the past approximatly 36 years. It is or should be plain that family law in both substances and structure must evolve to reflect those changes.
Mandating best known practices and approaches in the area is critical. There is little doubt that the Bill represents positive changes for families having to cope with separation and divorce.
Beyond amending the Act, the Bill also enshrines Canadian obligations pursuant to the Hague Convention into the Act and attempts to create a better enforcement environment for support orders.
The Bill was first tabled in Parliament on May 22, 2018 by the former Minister of Justice, the Honourable Jody Wilson-Raybould. After committee hearings, a Ministerial change to the Honourable David Lametti, certain amendments, approval at the Senate and proclamation, it is now about to come into force.
There has been near universal approval of the idea of amending the Act along the lines set out in the Bill. That however does not mean that there has not been some criticism from both father’s rights groups and women’s rights groups, to name two.
Practitioners in the area would be hard pressed to take significant issue with any of the major overall themes of the Bill. The Bill takes substantive steps forward in aligning the Act with the leading social sciences in the area and comports generally with the accepted concept of ensuring that children’s best interests are prioritized.
The Bill appears to be in part the product of work that has been undertaken by various provincial governments and stakeholders of different political stripes across the country.
The Bill replaces the language of custody and access with parenting orders. The intention here is to permit parents to refocus away from the win-loss regime of custody and access toward a ‘sharing of powers’ regime. Although new to Manitoba, Canada as a whole has seen this type of amendment before. Alberta and British Columbia, for example, both have similar language in their provincial legislation. Indeed many of the amendments take an approach that was first seen in BC some years ago.
The Bill also adds a test to assist the Court in determining relocation applications, enshrines a positive duty to encourage parties to pursue dispute resolution outside of litigation, defines “best interests” as the only test in dealing with the determination of parenting regimes, and provides a list of factors to determine best interests.
This paper will address the Divorce Act amendments in the Bill. It will only touch on other aspects of the Bill in a cursory fashion. This is due to the limited time and space available. Apologies are extended for this practical limitation of the paper.
The best place to begin an analysis of the Bill is the definitions section.
The Bill abolishes the definitions of “custody” and “access”. Instead we see a number of new terms defined in the legislation. Some of the key terms are:
- “Contact order”, defined as an order providing access to a child for a person other than a spouse under s. 16.5(1);
- “Decision-making responsibility” is a power akin to custodial rights, and is defined as meaning the responsibility for making significant decisions about a child’s well‑being, including in respect of:
- culture, language, religion, and spirituality; and
- significant extra-curricular activities;
- “Family dispute resolution process” is defined as a process outside of Court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation, and collaborative law;
- “Family justice services” means public or private services intended to help persons deal with issues arising from separation or divorce;
- “Family member” includes a member of the household or a child of the marriage, or a spouse or former spouse, as well as a dating partner…who participates in the activities of the household;
- “Family violence”: is broadly defined and includes conduct (that may or may not be defined as 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 the other family member to fear for their own safety or that of another person, and in the case of a child, the direct or indirect exposure to such conduct. The definition goes on to include a number of non-exhaustive examples:
- Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- Sexual abuse;
- Threats to kill or cause bodily harm to any person;
- Harassment, including stalking;
- The failure to provide the necessaries of life;
- Psychological abuse;
- Financial abuse;
- Threats to kill or harm an animal or damage property; and
- The killing or harming of an animal or the damaging of property;
- “Parenting time” means the time that a child of the marriage spends in the care of a person referred to in ss. 16.1(1) (parenting orders), whether or not the child is physically with that person during that entire time;
- “Relocation” is defined as meaning a change in the place of residence of a child of the marriage or person who has parenting time or decision-making responsibility, or who has a pending application for a parenting order that is likely to have a significant impact on the child’s relationship with a person who has parenting time or decision-making responsibility or an application for a parenting order, or a person who has contact with the child under a contact order; and
- “Parenting plan” is defined at s. 16.6(2) as meaning a document or part of a document that contains the elements relating to parenting time, decision-making responsibility, or contact to which the parties agree.
The Bill addresses jurisdictional issues that are only likely to be relevant in rare cases. There are changes here however that mandate brief consideration.
Sections 4(2) and 4(3) state that where divorce proceedings are pending in two Courts that would otherwise have jurisdiction on different days, and the proceeding that was first commenced is not discontinued, that Court (where the application was first commenced) has exclusive jurisdiction to hear and determine any divorce proceedings, and the second divorce proceeding is deemed to be discontinued.
If two divorce proceedings are commenced on the same day in two different Courts that would otherwise have jurisdiction, and neither is discontinued within 40 days after commencement, then the Federal Court is mandated to determine which Court will retain jurisdiction by following certain general principles.
Sections 3(2) and 3(3) state that in dealing with variation proceedings, if variation proceedings are pending in two Courts that would otherwise have jurisdiction on different days, then the first one is to have jurisdiction unless the other is discontinued. If variation proceedings are commenced on the same day in two Courts that would otherwise have jurisdiction, and neither is discontinued within 40 days after commencement, then once again the Federal Court is mandated to determine which Court retains jurisdiction by applying certain general rules.
The concept of a court transferring an application to a jurisdiction where the child is habitually resident, if they are habitually resident in another province (where the child is a subject matter of the pleading), is maintained (ss. 6(1) and 6(2)) but uses the language of international conventions already common in many jurisdictions. Pursuant to s. 6.1, if there is a request for a contact order where a court in a province is seized of the parenting order, they also have jurisdiction to hear and determine an application for a contact order. If there is no variation proceeding relating to a parenting order in respect of a child, then the Court where the child is habitually resident has jurisdiction to hear and determine an application for a contact order, an application for a variation in respect of a contact order, or an application for a variation in respect of a parenting order brought by contact people. The Court however can determine that another province is better placed to hear and determine the application, in which case the application can be transferred to that other jurisdiction (s. 6.1(2)).
The Bill clarifies that if no parenting order has been made in respect of a child, no application for a contact order may be brought under the Act.
There are a number of other sections dealing with jurisdictional questions that can be found at ss. 6.2, 6.3, and 6.7 of the Bill.
In conclusion, the new provisions dealing with jurisdiction provide various tests for jurisdiction where:
- a contact order is sought under s. 6.1;
- a child is wrongfully moved from a province under s. 6.2; and
- a child is not habitually resident in Canada under s. 6.3.
Another significant change arising from the Bill addresses the duties of parties, lawyers, and the Courts. These changes may be found in ss. 7.1 – 7.8 (inclusive).
Section 7.1 of the Bill mandates that a person who has parenting time or decision‑making responsibility, or who has contact pursuant to a contact order, is required to exercise their time, parenting responsibility, or contact in a manner consistent with the child’s best interests, as defined in the Act.
At s. 7.2, anyone who is a party to a proceeding under the Act is required to protect any child of the marriage from conflict arising from the proceedings to the best of their ability.
Only to the extent that it is appropriate to do so, parties to a proceeding are required to try to resolve matters that may be the subject of an order under the Act through a family dispute resolution process (s. 7.3).
A party to any proceeding under the Act or who is subject to an order made under the Act is required to provide complete, accurate, and up-to-date information if required to do so. There is no definition in the Act as to what “complete, accurate, and up-to-date information” might include. Presumably, this section is intended to work with The Court of Queen’s Bench Act and Rules. Obviously, the type of information may change as the proceeding progresses. As the Court has noted repeatedly, what might not be relevant at one stage of a proceeding might be relevant at another.
The section does require the provision of complete, accurate, and up-to-date information. As long as an individual is required to provide the information under the Act, then it must be complete, accurate, and up-to-date. The section does not clarify whether this is an ongoing obligation or a one-time affair. Presumably, it would be considered an ongoing affair, but that is not crystal clear from s. 7.4 though Court Rules, forms and practices may remedy any amibuity.
The legislation also mandates that anyone who is subject to an order made under the Act shall comply with the order until it is no longer in effect. There is no excuse permitted under the Act for non-compliance. Accordingly, variations will need to be brought if the intention of individuals is no longer to comply with the terms of an order because it is out of date (s. 7.5).
When commencing a proceeding under the Act or responding to a proceeding commenced under the Act, parties must include a statement certifying that they are aware of their duties set out above (s. 7.6).
Counsel have the duty, unless the circumstances of the case would make it inappropriate to do so, to:
- draw to the attention of the spouse the provisions of the Act that have as their object the reconciliation of spouses;
- discuss the possibility of reconciliation, and to inform spouses of marriage counselling and guidance facilities that might be able to assist in achieving reconciliation (s. 7.7(1));
- encourage people to attempt to resolve matters that may be the subject of an order under the Act;
- proceed through a family dispute resolution process unless circumstances are such that would “clearly not be appropriate to do so”;
- inform the person of the family justice services that are known that might assist the person in resolving matters under the Act and in compliance with any order or decision made under the Act; and
- advise the parties of the individual’s duties under the Act (s. 7.7(2)).
- certify in the document commencing the proceeding that they have complied with their obligations pursuant to s. 7.7, as described above.
Courts also have certain obligations under the Act that are intended to coordinate proceedings and to identify orders, undertakings, recognizances, agreements, or measures that may conflict with an order under the Act. In many respects presently these obligations will be downloaded to parties so that they are obliged to disclose. In the future however, it is conceivable that technological innovations will permit the Court to access such information on its own.
At s. 7.8(4), the definition of “collusion” is set out and specifically excludes separation agreements or similar types of agreements. It is unclear why collusion needed to be specifically defined, as one would have thought that separation agreements were clearly not matters of collusion; however, the government elected to be clear on the definition of collusion.
Section 16(1) makes clear that the Court is only to take into consideration the best interests of the child of the marriage in making a parenting order or contact order. This finally and definitively puts to rest any notion of presumptions of equal parenting. There simply is no such presumption. It is quite clear that the best interests of the individual child of the marriage is the only consideration to be taken into account.
Section 16(2) makes clear that the Court is to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being when considering the best interests factors.
The best interest factors are expansive and not exhaustive as defined in the Bill. The concept of including a definition of “best interests” is not new in Canadian law. Many provincial jurisdictions already define the term “best interests” and make that the guiding principle. The Divorce Act has now caught up.
The Court is to consider all factors related to the circumstances of the child, including:
- the child’s needs given the child’s age and stage of development, such as the child’s need for stability;
- the nature and strength of a child’s relationship with each spouse and each of the child’s siblings, grandparents, and any other person who plays an important role in the child’s life;
- each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- the history of care of the child;
- the child’s views and preferences, giving due weight to the child’s age and maturity;
- the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- any plans for the child’s care;
- the ability and willingness of each person in respect of whom the order would apply to meet the needs of the child;
- 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;
- 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;
- 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.
When dealing with family violence, the Court is directed in s. 16(4) to consider several specified special factors as follows:
- The nature, seriousness, and frequency of the family violence and when it occurred;
- Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
- Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
- The physical, emotional, and psychological harm or risk of harm to the child;
- Any compromise to the safety of the child or family member;
- Whether the family violence causes the child or family member to fear for their own safety or for that of another person;
- Any steps taken by the person engaging in family violence to prevent further family violence from occurring and improving their ability to care for and meet the needs of the child; and
- Any other relevant factor.
Section 16(5) mandates that the Court is not to take into consideration the past conduct of any person unless that conduct is relevant to the exercise of parenting time, decision-making responsibility, or contact with the child under a contact order. This section appears to provide a rather broad door to be opened on conduct in various circumstances.
Section 16(6) mandates that in allocating parenting time, the Court is to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. This section can be contrasted with the existing “maximum contact” principle at s. 16(10) of the Act prior to the amendments coming into force on March 1, 2021.
Prior to the amendments, the legislation stated that the Court was to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. In the amended Act, the principle is that a child should have as much time with each spouse as is consistent with the best interests of the child. Parliament made a conscious choice to change the phrase “as much contact” to the phrase “as much time”. If there was a presumption that maximizing contact consistent with the child’s best interests has been the requirement until now, henceforth it will be time. Whether that is more or less expansive or is a difference without a distinction is unknown.
There were many submissions on this point made to the Parliamentary committee dealing with this issue. There were strong arguments made that maximizing contact should be deliberately excluded as being potentially harmful to children. There were, of course, other submissions in favour of the notion of including a presumption of equal time.
It is plain that the government did not choose to follow the presumption of equal time path, and instead elected to follow the path of the primacy of the best interests of the child. This supports the earlier contention that there is no presumption of maximizing contact and no presumption of equal time. It also is consistent with the social sciences and avoids the pitfalls that arose in certain jurisdictions that include (or included) a presumption of equal time.
At s. 16.1 of the Bill, Parliament set out that either or both spouses or a person who is not a spouse who is the parent of the child, stands in the place of a parent, or intends to stand in the place of a parent, could apply for parenting time or decision-making responsibility. It is important to note, however, that an individual who is not a spouse can only make an application with leave of the Court. (i.e. leave of the Court is required for non-spouses who are: parents; stand in the place of a parent; or intend to do so.)
The Court is entitled to make a parenting order that:
- allocates parenting time in accordance with s. 16.2;
- allocates decision-making responsibility in accordance with s. 16.3;
- includes requirements with respect to any means of communication that is to occur during the parenting time allocated to a person between their child and another person to whom parenting time and decision-making responsibility is allocated; and
- provides for any other matter the Court considers appropriate.
Parenting orders can extend for definite or indefinite periods or until a specified event occurs. Any terms, conditions, and restrictions that the Court considers appropriate may be imposed (s. 16.1(5)).
Section 16.1(6) sets out that, subject to provincial law, an order may direct parties to attend a family dispute resolution process. In addition, a parenting order may authorize or prohibit relocation (s. 16.1(7)). The Court is also empowered to make a parenting order such that parenting time or the exchange of the child is supervised (s. 16.1(8)).
The Court is also permitted to make a parenting order that prohibits the removal of the child from a specified geographical area without the written consent of any specified person or without a court order authorizing the removal (s. 16.1(9)).
Section 16.2 sets out that parenting time may be allocated by way of a schedule. The Bill also settles old disputes as to what decisions can be made during parenting time. In particular, it sets out that unless the Court orders otherwise, the person who has parenting time has exclusive authority to make during that time day-to-day decisions affecting the child.
Having said that, the Bill clarifies that decision-making responsibility or any aspect of that responsibility may be allocated to either spouse, to both spouses, to a third person, or to any combination of those persons (s. 16.3).
The Bill also includes a section dealing with the entitlement of parents to information. The Bill specifies that unless the Court otherwise determines, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.
This is not an insignificant change. Due to privacy legislation, this may result in some confusion and difficulty, at least in its initial stages, in terms of obtaining information from third-party care providers. Hopefully that will not be the case, and almost certainly, that was not the intention of the Bill.
Contact orders are not parenting orders. A person other than a spouse can apply for a contact order respecting a child of the marriage (s. 16.5(1) and (2)). A person can only, however, make an application for an order (or interim order) with leave of the Court under this Section or Section 16.1.
Contact orders can include orders for visits and means of communication and orders prohibiting the removal of the child without consent. Parenting plans can also be included in contact orders. Beyond that, the Court can provide for any other matter that the Court considers appropriate in a contact order (s. 16.5(5)(b)).
The Court is empowered to consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, including during one of the parties’ parenting time (s. 16.5(4)). Once again, the Court has multiple powers to order supervision for transfer or contact (s. 16.5(7)), to prohibit the removal of the child from a specific geographical area without consent or a court order (s. 16.5(8)).
Finally, in considering a parenting plan that is submitted by the parties, the Court can make any modification that it considers appropriate (s. 16.6(1)).
Where a person has parenting time or decision-making responsibility and they intend to change their place of residence or the place of residence of a child, they are required to notify the other person who has parenting time, decision-making responsibility, or contact of that intention. The notification is to include the date on which the change is expected to occur and the address of the new place of residence and contact information (s. 16.8(1) and (2)).
Notwithstanding the foregoing provision, on application, the Court can vary or modify those requirements if there is a risk of family violence (s. 16.8(3)). The application to change the notice requirement in cases where there is a risk of family violence may be made without notice (s. 16.8(4)).
Section 16.9 addresses relocation. The amendments take a very child centric view of relocation. For example, the definition of relocation focuses on the impact of the proposed change in location upon the child. As another example, notices are required consistent with a child focused approach. Indeed the relocation part of the Bill begins with the notice requirements.
Section 16.9(1) sets out that the person who has parenting time or decision-making responsibility respecting a child who intends to undertake relocation is required to notify, at least 60 days before the expected date of the proposed relocation, in a user friendly form prescribed by the regulations any other person who has parenting time, decision-making responsibility, or contact of their intention to relocate.
The present version of the Bill is a change from the original version, which did not specify that the change had to be in a set form prescribed by the regulations. This change followed recommendations made by various stakeholders, including the Canadian Bar Association.
Section 16.9(2) mandates the content of the notice, which must set out:
- the expected date of the relocation;
- the address of the new place of residence and contact information of the person or child;
- a proposal as to how parenting time, decision-making responsibility, or contact could be exercised; and
- any other information prescribed by the Regulations.
Section 16.9(3) contains the exception permitting the Court to modify the notice requirements on application, including where there is a risk of family violence. This also represents a change to the originally introduced Bill. These changes also follow submissions made by various stakeholders. The Bill has maintained the notion that such an application under s. 16.9(3) can be made without notice (s. 16.9(4)).
The Bill permits relocation as of the date referred to in the notice if:
- the relocation is authorized by the Court, or
- the following conditions are satisfied:
- The person with parenting time or decision-making responsibility who has received notice does not object to the relocation within 30 days after the date on which notice is received by setting up an objection in a form prescribed by the regulations, or an application made under s. 16.1(1) or s. 17.1(b); and
- There is no order prohibiting the relocation.
Here too there have been changes to the originally introduced Bill following submissions made by various stakeholders. Without exploring the nature of those submissions, suffice it to say that this section will be important in deciding the structure of orders presently and in the future.
It may be advisable to include orders prohibiting relocation absent a court order ab initio. At a minimum the topic will need to be considered and discussed with clients at the front-end of proceedings. If a prohibition on relocation is ordered early on, that would mean that the automatic relocation following notice would not be permitted. This type of insurance may be important where there is a possibility of relocation in the future.
In situations where there is no Court application, only a separation (with or without an agreement), and notice is received of an intended relocation, the responding party must file their objection or bring a court application within 30 days. Failing to do that would mean that the party intending to relocate could, in fact, relocate.
There are many factors to consider in dealing with the relocation provisions in the Bill. One concern is the way that the recipient might receive notice and the 30-day requirement. It should be borne in mind that the 30-day objection period is from the date the notice is received, not the date the notice is sent. There is no definition of receipt; however, the old postal acceptance rule and the Queen’s Bench Rules on point (see Rule 16.06) come to mind as a potential area of difficulty where service is disputed.
Where service has occurred and the responding party wishes to object, the notice of objection is required to state that:
- the person objects to the proposed relocation;
- the reason for the objection;
- the person’s views on the proposal for the exercise of parenting time, decision-making responsibility, or contact set out in the notice referred to in s. 16.9(1); and
- any other information prescribed by the regulations.
The wording of this section is also new following committee hearings upon third reading and represents changes recommended by various stakeholders. The regulations define the parameters of the form of notice and objection which forms are intended (and appear) to be in a user friendly form.
It is most important that counsel are aware of these provisions and provide proper and prompt advice to clients. Once again, counsel can be pre-emptive when relocation is not on the table, ensuring that there are restrictions on relocation if that is the intention of the parties. Presumably, where there is shared parenting, it would be the intention that both parents continue to play an active role in the child’s life such that mere notice would not be sufficient to upset the existing role of the parent. In non-shared parenting situations where there is ongoing regular contact, similar considerations may well be made to apply.
At s. 16.92(1) of the Bill, the best interests test is expanded in the case of mobility. This is not unlike the concept the former Bill 33 utilized in Manitoba in addressing relocation. As we all know, Bill 33 died on the order paper, however, it contained a very forward-thinking framework for dealing with relocation issues.
In any case, s. 16.92(1) instructs the Court to take into consideration the following additional best interest factors when dealing with relocation:
- The reasons for the relocation;
- The impact of the relocation on the child;
- 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;
- Whether the person who intends to relocate the child complied with any applicable notice requirement under s. 16.9, provincial family law legislation, an order, arbitral award, or agreement;
- The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- 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 travel expenses; and
- 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 their likelihood of future compliance.
Section 16.92(1) is very interesting in several respects. For the first time, notions of arbitration are brought into the Act. Plainly, Parliament has considered and approved of the notion of arbitration in dealing with family law matters in general and parenting decisions in particular.
Importantly, the additional best interest factors in relocation cases suggests that Parliament was live to the importance to children of having ongoing parenting time with those individuals who are important in their lives, most commonly the other parent. Insofar as the Court is mandated to consider the impact of relocation, the existing time spent with each person in parenting time, compliance issues, and existing awards, orders, and agreements, it seems plain that relocation is not intended to be an easy affair. This is also true in considering the reasons for the relocation.
Where there are special circumstances, such as unique needs of a child that cannot be met in the existing location or unique employment or other circumstances, it may well be that the reasons for the relocation trump other factors. Barring special circumstances however, consistent with the social sciences in the area, where there is a strong attachment and significant time (as defined in the Bill) spent with the non-relocating parent, Parliament seems to be suggesting that a priority (not the only or primary priority) is the involvement of children with both parents and compliance with existing orders, agreements, and arbitral awards.
At s. 16.92(2), Parliament made clear that there is to be no consideration of the double-bind question at all in respect of the relocating parent. There is much that has been written on this question and whether it is appropriate to prohibit such a question. This paper will not address that issue. Suffice it to note that the Bill unequivocally establishes that Parliament elected to go with the approach that the double-bind question is not permitted for the relocating parent.
The Court cannot consider whether, if the child’s relocation is prohibited, the person would relocate anyway or would not relocate.
One of the most interesting sections of the Bill addresses the burden of proof in relocation cases. The burden of proof formula in the Bill has been structured differently in each of the three previous provincial iterations of the concept (British Columbia, Manitoba – attempted but failed to pass, and Nova Scotia) that have been advanced in Canada. Parliament elected to adopt a somewhat generalist approach rather than the very specific approach put forward in the late Bill 33 in Manitoba. In so doing, the amended Act resembles the law in British Columbia on point. The law in Nova Scotia, while less specific and direct than the former Bill 33 was in Manitoba, provides more guidance than the law in British Columbia, as reflected in the Bill.
Section 16.93(1) sets out that, provided parties to a proceeding substantially comply with an order, arbitral agreement, or agreement that provides that a child of the marriage spends “substantially equal time” in the care of each party, the party who intends to relocate has the burden of proving that the relocation would be in the best interests of the child. The phrase “substantially equal time” is not defined in the Bill.
Where a child enjoys “substantially equal time” with both parents, Parliament has indicated its intention that there is a heavier burden on the individual wanting to move, thus emphasizing the notion that relocation in these situations is onerous and should not be permitted lightly. Neither parent’s views would have primacy. Here the moving party is required to meet the conceptually heavy burden of showing that it would be in the best interests of the child to permit the move.
Section 16.93(2) addresses the burden of proof for persons who do not have substantially equal time. This part of the Bill sets out that if parties to a proceeding have substantially complied with an order, arbitral award, or agreement that provides that a child of the marriage spends “a vast majority of their time” in the care of the party who intends to relocate, then the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests. The phrase “vast majority of their time” is not defined.
In all other cases, each of the parties have the equal burden of proving whether or not the relocation is in the best interests of the child (s. 16.93(3)).
Given the Bill’s proximity to the BC legislation in this area, a brief analysis of some BC case law in this area follows.
In K.J. v. A.R., 2018 BCSC 1223 (CanLII), the Supreme Court of British Columbia had occasion to deal with the burdens of proof in relocation cases pursuant to The Family Law Act, S.B.C. 2011 c. 25 [FLA]. In that case, the father’s time with the child had increased from parenting time on three weekends of each month at separation in 2015, up to equal time commencing February 2017.
The father was an electrician who worked long hours. Accordingly, his new common-law partner, a psychiatric nurse, spent time parenting the child when he was at work. The mother was an environmental engineer who was offered a promotion with increased money if she moved from Fort St. John, British Columbia to Grande Prairie, Alberta, approximately two hours away.
The mother gave proper notice pursuant to the FLA (much like that set out in Bill C-78), and the father responded accordingly.
Justice Jenkins found that, although there would be economic benefit to the wife from the move, given that there was substantially equal time, the wife had the burden of showing objectively that the move would benefit the child. Justice Jenkins found that he was uncertain that any benefit would accrue to the child from the mother’s improved emotional well-being from having more money when juxtaposed against the loss of the existent relationship he has with his father, family, and friends. In particular, the Judge said that he was uncertain if any well-being would outweigh “the detriment of moving from his father, school, and community” (p. 27).
After reviewing the relevant factors as set out at s. 37(2) of the FLA, the Court found that it would not be in the best interests of the child to relocate to Grande Prairie, finding that the mother had not met her burden given the substantially equal time-sharing arrangement that had been in place.
It is unclear if the mother argued that there was not actually substantially equal time sharing in fact with the father because it was his girlfriend who was taking care of the child during the time he was at work. Bear in mind that, pursuant to s. 16.93(1) of the Bill, the child must spend substantially equal time in the care of each party, not with a third party.
In D.M. v. E.M., 2014 BCSC 2091 (CanLII), the Supreme Court of British Columbia had occasion to address the issue of relocation pursuant to the same legislation, but also in light of the Act. In that case, the Court had to deal with the variation of an order made pursuant to the Act. The Act order provided for equal shared parenting.
The Court in that case undertook an analysis both pursuant to the Gordon v. Goertz line of cases (given that it was a Divorce Act Order that was being varied), and in accordance with the relocation principles set out in the FLA. It might be noted that where there is different legislation and terminology such as is or will be the case in Manitoba effective March 1, 2021, some interesting legal questions potentially arise that are beyond the scope of this paper.
Justice Butler of the Supreme Court of British Columbia decided that it would be in the child’s best interests to move an hour and a half away from Nanaimo to Courtenay, British Columbia. The Court permitted the move notwithstanding that it found that there would be something of a disruption to the existing parenting arrangement that the child enjoyed and prospered under.
At s. 16.94, the Bill addresses interim relocation. In that section, the legislation sets out that the Court is empowered to decide not to apply the burdens referenced above (ss. 16.93(1) and (2)) when dealing with an interim request to relocate. This would seem to suggest that the old decision of Plumley v. Plumley, 1999 CanLII 13990 (ON SC) remains the foundational principle when dealing with interim relocation cases. It is worth nothing that Plumley has been cited in well over 100 documents on CanLII as recently as this year (2021).
In Plumley, the Ontario Court decided that three factors are particularly important when dealing with mobility on an interim basis:
- A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial;
- There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which would be lost if the matter awaits trial, or the best interests of the children might dictate that they commence school at a new location; and
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.
Having said the foregoing, Gamble v. Dyck-Gamble, 2000 MBCA 141 (CanLII) remains the law in Manitoba, which frowns upon interim relocation absent a viva voce hearing.
Section 16.95 of the Bill permits the Court to apportion the costs relating to the exercise of parenting time by a person who is not relocating as between the relocating and non-relocating parent if the Court authorizes the relocation.
This development means that there would no longer be a necessity to show undue hardship in reducing child support and clarifies the ability of the Court to apportion the costs involved in exercising parenting time over long distances. This amendment represents a practical real world positive development in the law.
The Act requires notice to be given where there is relocation to persons with contact. Section 16.96 mandates that a person who has contact with a child of the marriage under a contact order is required to notify in writing any person who has parenting time or decision-making responsibility of their intention to change their place of residence, the date on which the change is expected to occur, the address of the new place of residence, and contact information.
Where the change is likely to have a significant impact on the child’s relationship with the person, the notice is to be given 60 days before the change in place of residence in a form prescribed by the regulations. There is also to be a proposal as to how contact could be exercised in light of the change, and any other information prescribed by the regulations. Once again, in s. 16.96(3), the Court may on application modify the notice requirements or eliminate them entirely if it is of the option that it is appropriate to do so, including whether there is a risk of family violence. Once again, notice under those sections can occur without notice (16.96(4)).
Pursuant to s. 17, the Court is empowered to vary, rescind, or suspend retroactively or prospectively a support order, parenting order, or a contact order. Once again, the Court is required to find that there has been a change of circumstances of the child before making a variation order dealing with the child (s. 17(5)).
Parliament has added in s. 17(5.1) which mandates that a former spouse’s terminal illness or critical condition is considered a change of circumstances. Courts are empowered to make variation orders resecting parenting and the allocation of parenting time in such circumstances. Beyond critical or terminal illness, relocation of a child is deemed to constitute a change of circumstance as well (s. 17(5.2).
Tying up the bundle on relocation, s. 17(5.3) sets out that where a relocation is prohibited, that alone does not constitute a change of circumstances in order to grant variation.
Proceedings Between Provinces and Between Provinces and Designated Jurisdictions to Obtain, Vary, Rescind, or Suspend Support Orders, or to Recognize Decision of Designated Jurisdictions
The Bill appears to have altered s. 17.1 (the variation of orders by affidavit where spouses live in different provinces), s. 18 (provisional orders), and s. 19 (confirmation orders). Instead, a new system is imposed that is functionally related to The Provincial Inter-jurisdictional Support Orders Act that are currently in place across Canada
Pursuant to s. 18.1 of the Bill, where former spouses live in different provinces, either can apply to vary a support order or recalculate child support. The method by which they do that appears to be by sending the application to the province’s designated authority. The provincial designated authority in turn is to send the application to the authority in the other spouse’s province. The authority in the receiving province is required to serve the spouse or former spouse, and the application is heard in that province. Where former spouses live in different provinces, the application is made without notice, whether to obtain, vary, rescind, suspend, retroactively or prospectively, a support order, or to have the recalculation.
Where the competent authority is a provincial child support service, the child support is to be calculated or recalculated in accordance with the provisions of the Act. Where service of the documents required is not possible, the documents are to be returned to the designated authority in the originating province. The Court is of course permitted to adjourn proceedings if it requires further evidence, and to make interim orders, if appropriate.
If the Court requires other information from the applicant, it must request the designated authority of the province to communicate with the applicant to obtain the evidence. Where the further evidence required is not received within 12 months after the day in which the Court make the request to the designated authority, the Court is entitled to dismiss the application, and terminate any interim order. The dismissal does not however preclude the applicant from making a new application (s. 18.1(14)). Section 18.1(15) permits evidence to come before the Court, whether orally, in affidavit, or by mean of telecommunication, permitted by the Rules and practice and procedures of the Court.
Given that the Court will be dealing with documents from different jurisdictions, the Act mandates that where the Court receives a document in a form that is different from that required by the Rules, or contains terminology that is different from that used in the Act or regulations, the Court is to give broad interpretation to the document for the purpose of giving effect to it. The Court is not intended to get hung up on terminology or similar questions. The legislation is intended to be purposeful.
Pursuant to s. 18.2, applications under paragraph 17(1)(a) for a variation in respect of support can be converted into an application for an inter jurisdictional order where the respondent habitually resides in a different province.
If an application is made to the Court pursuant to s. 17(1) for a variation order, and the respondent habitually resides in a different province, where the respondent does not file an answer to the application, or request conversion under s. 18.2(1), the Court in which the variation application was made is permitted to hear and determine the application, (in accordance with s. 17) in the respondent’s absence if there is sufficient evidence to do so; or, if it is not satisfied that there is sufficient evidence to do so, the Court may direct that the application be considered an application pursuant to s. 18.1, in which case the application is to be sent to the designated authority of the province in which the application was made.
Pursuant to s. 19, where the applicant’s spouse lives outside of Canada in a country to be specified in accordance with regulations, the Act contemplates that the applicant will send the variation application to the country’s designated authority, which in turn is to send the application to the designated authority in the other spouse’s province. The designated authority that receives the application is required to serve the other spouse, and the application is intended to be heard in that province.
A similar process is contemplated in s. 19.1 where the applicant’s spouse lives in Canada and the other spouse lives outside of Canada in a country that is designated/specified in the regulations. In those cases the application is intended to be heard in the other country, and the decision made in that country may be registered in Canada under the law of the applicant’s spouse’s province.
The process in respect of these extraterritorial applications is such that the application can be made without notice. The Section contemplates the pronouncement of provincial orders in such circumstances as well. Specifically, if the application contains a provisional order that was made in the designated jurisdiction, and does not have legal effect in Canada, the Court can take that original order into consideration. The Court in Canada is not however bound by it.
It is worth noting that an order made pursuant to the amended Divorce Act in respect of support, parenting time, decision-making, or contact, with a provincial child support services provision that recalculates child support will have legal effect throughout Canada. In other words, Recalculation Services will eventually have legal effect throughout Canada (s. 15(2) replacing ss. 20(2) of the Act).
At s. 22 of the Bill, Parliament set out that a divorce granted by a competent authority is to be recognized for the purposes of determining the marital status in Canada of any person if either former spouse was habitually resident in the country for at least one year immediately preceding the commencement of the proceedings for the divorce. In other words, the old “ordinary residence” test is now replaced with the “habitual residence” in the foreign jurisdiction for a one year test. Similarly, there is a section addressing divorces granted after July 1, 1968 by competent authorities (s. 22(2)).
Section 22.1 of the Bill sets out that on application by an interested person, a court in a province that has sufficient connection with the matter shall recognize a decision made by a competent authority that has the effect of varying or suspending a parenting order or contact order unless:
- the child concerned is not habitually resident in the foreign country where the authority that made the order is located, or where the competent authority of the other country would not have had jurisdiction if it applied substantially equivalent rules related to jurisdiction, as set out in the Act;
- the decision was made, except in an urgent case, without the child having been provided the opportunity to be heard in violation of fundamental principles of procedure of the province (this may include the United Nations’ Convention on the Rights of a Child, though that is not listed);
- a person claims that the decision negatively effects the exercise of their parenting time, decision-making responsibility, or contact, and the decision make, except in an urgent case, without the person having been given the opportunity to be heard;
- recognition of the decision would be manifestly contrary to public policy, taking into consideration the best interests of the child; or
- the decision is incompatible with a later decision that fulfills the requirements for recognition under this Section.
Where the Court has recognised a competent authority’s decision, it is deemed to be an order made pursuant to s. 17, and has legal effect across Canada. Similarly, the Court’s decision refusing to recognize the competent authority’s decision has legal effect throughout Canada (s. 22.1(2) and (3)).
The Act recognizes that there are different means of presenting submissions where parties are habitually resident in different provinces. Provided that there is no breach of applicable rules respecting practice and procedures in any court, a court is entitled to make orders based on evidence and submissions of parties, whether orally, by affidavit, or by means of telecommunication, permitted by the rules in that province (s. 23.1).
Language rights are set out in s. 23.2. Language rights requirements ensure that any person can use either official language in filing pleadings and documents, and giving evidence or making submissions. The Court is required, at any person’s request, to provide simultaneous interpretation for one official language into the other. Each party has the right to a judge who speaks the same official language as the party, or both official languages. Transcripts and recordings are also to be in either official language. Judgments must be rendered in either official language, as it relates to the party. Similarly, court forms relating to any proceedings under the Act must be made available in both official languages.
Sections 25.01 and 25.1 continue to grow child support recalculation services. These Sections permit the federal government to create child support recalculation services intended to determine the amount of child support payable pursuant to the Guidelines in concert with provincial governments. Spouses disagreeing with calculations and recalculations are entitled to an appeal.
In particular, a spouse who is subject to recalculation or order who disagrees with the amount may apply to a court of competent jurisdiction for an order addressing the issue of support (s. 25.01(5)). The recalculated amount is in force while the application to the Court for determination is pending (s. 25.01(6)).
Section 25. 2 permits the Minister of Justice to “conduct activities” related to matters governed by the Act, including undertaking research. It is hoped that research will flow from the Act, and the Bill will be funding for same.
This Section of the Bill deals with several international conventions to which Canada is a party. These are:
- The 2007 Convention – Convention on the International Recovery of Child Support and other Forms of Family Maintenance (concluded at the Hague on November 23, 2007; and
- The 1996 Convention – Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility, and Measures for the Protection of Children (concluded at the Hague on October 19, 1996).
These conventions will or may at some point be considered with, and where applicable take precedence over, other federal law on point. It is important to note that even where Canada has signed onto a Convention, that does not mean that the Convention is the law. There needs to be acceptance and passage in at least one province and federally before such Conventions the law in Canada.
These Conventions are beyond the scope of this paper.
This Section of the Bill permits searches and releases of information respecting family provisions (support, parenting, contact, and custody/access). The Section of the Bill is very important, but also is beyond the limited scope of this paper.
Suffice it to say, that information can be obtained to enforce orders through a detailed person and designated authority. A designated court official can or will be able to apply for the information on an application (with or without notice) from a person following certain required steps. This new power and information-gathering process is potentially an important tool in enforcement for parties and designated authorities, The information can also be requested in cases of child abduction investigations (by peace officers).
In addition, garnishment provisions for support and other costs have been strengthened, including garnishment of federal entities and pensions. A close analysis of this aspect of the Bill is also regrettably beyond the scope of this paper.
The Bill amends the Criminal Code in terms of abductions in contravention of custody or parenting orders. A key criterion remains the intention to deprive a parent or guardian of care/change/position of the child.
Hopefully this brief analysis and overview of Bill C-78, at least as it pertains to the Divorce Act amendments, proves to be useful. Going forward it will be essential to have a detailed grasp of the amended Act and the generational changes it portends for all Canadian families.
 See Mary Poppins “Let’s start at the beginning, a very good place to start”.
 Bates v. Welcher, 2001 MBCA 33 (CanLII) and Welcher v. Welcher, 2001 MBCA 36 (CanLII)
 JP Boyd, A Brief Overview of Bill C-78, an Act to amend the Divorce Act and related legislation, May 2018
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