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The Divorce Act is changing

Couple holding wedding rings with certificate of divorce on the table

On March 1, 2021, the federal Divorce Act is changing. (Note these changes were pushed back due to the coronavirus pandemic.) If you’re in the process of getting a divorce, or are thinking about getting divorced, the new rules will apply to you. Learn about some of the important changes coming to Canada’s divorce law.

What you should know

As of March 1, 2021, the terms “custody” and “access” won’t be used in the Divorce Act. Instead, new terms will be used to talk about parenting arrangements after separation.

Decision-making responsibility replaces “custody.” The new term covers important parenting choices involving things like children’s health, education, language, and religion. These responsibilities can be shared between spouses or given to one spouse alone. A spouse with decision-making responsibility has the right to get information about their children’s health, education and well-being.

Parenting time replaces “access” to a child. It means the time a spouse spends with a child. A spouse with parenting time has the right to make day-to-day decisions (including emergency decisions) about a child during their time with the child. They also have the right to get information about their children’s health, education and well-being.

Contact is another term that replaces “access.” It refers to the time that someone who isn’t a spouse might have with a child, like a grandparent. Someone with contact does not have the right to make day-to-day decisions about a child. Nor do they have the right to get information about the children’s health, education and well-being.

Check back when the new Divorce Act comes into effect to learn more about guardianship, parenting arrangements, and contact.

When a court makes a decision about a child, it must be guided by only the best interests of the child. What’s new as of March 1, 2021, is a list of specific factors that the court and spouses can consider when deciding what’s in a child’s best interests. The factors include:

  • the child’s views and preferences
  • any court action or order relevant to the child’s safety and well-being
  • any family violence

When considering these and other factors, the court must give priority to the child’s physical, emotional, and psychological safety, security, and well-being.

In the new Divorce Act, family violence is defined. It means physical abuse as well as sexual abuse, psychological abuse, and financial abuse. The definition also includes harassment and threats of harm to persons, pets, and property.

Also new is that the court will have to consider any existing or upcoming civil protection, child protection, or criminal court actions when family violence is an issue.

The court will also have to consider whether family violence is a factor when making a decision about the “best interests of a child”. If it is, then the court has to examine another important list of factors, including:

  • how often and how serious the family violence is
  • whether there is a pattern of coercive and controlling behaviour
  • whether the person who has been violent has taken any steps to prevent future violence and improve their parenting

Check back when the new Divorce Act comes into effect for more information about family violence.

Starting March 1, 2021, new rules will apply to what happens when someone wants to move away, with or without their child. When the move is likely to have a “significant impact” on the relationship a child has with someone who has parenting time, decision-making responsibility, or contact, the law calls this relocation.

Under the new law, when someone plans to relocate, they have to give 60 days’ written notice. This must be given to anyone who has parenting time, decision-making responsibility, or contact. (Notice may not have to be given if there is family violence.) Someone with parenting time or decision-making responsibility has 30 days to object to it using a special form. Someone with contact cannot object to a plan to relocate.

Check back when the new Divorce Act comes into effect to learn more about relocation.

The new Divorce Act encourages people to try to resolve their family problems out of court. They can do this through mediation, collaborative negotiation, or arbitration.

Check back when the new Divorce Act comes into effect to learn more about mediation, collaborative negotiation, and arbitration.

Many other changes have been made to the Divorce Act. And some related federal laws — about child support enforcement and pensions, for example — will also be changed. To learn more about them, visit the federal Department of Justice’s website and the wikibook JP Boyd on Family Law.

Common questions

Starting March 1, 2021, the terms “custody” and “access” won’t be used in the Divorce Act. The change to the Divorce Act won’t change older agreements or orders that talk about custody and access.

A former spouse with “custody” under an older agreement or order will have decision-making responsibility and parenting time. A former spouse who has “access” but not custody will have parenting time. But, they still won’t be able to participate in making decisions about their child, other than day-to-day decisions. Someone who has “access” to a child but isn’t a spouse will have contact with the child.

Before March 1, 2021After March 1, 2021
CustodyDecision-making responsibility and parenting time
AccessParenting time, for people who are spouses
AccessContact, for people who aren’t spouses

Your custody and access agreement or order will still be valid after the new Divorce Act comes into effect. Some legal terms have changed, but those changes don’t require you to go to court to update your existing agreement or order.

To make a change to a Divorce Act custody or access order, you or the other spouse has to prove there’s been an important change that affects your children. This is called a “change in circumstances” in the Act. The changes to the Divorce Act are not a change in circumstances.

The new Divorce Act will apply if you have to go to court to change your agreement or order after February 2021.

If the new law comes into effect after you’ve filed a court application but before you get your order, the new Divorce Act applies.

Who can help

The federal Department of Justice website provides detailed information about the changes to the Divorce Act.

The wikibook JP Boyd on Family Law explains the changes to the Divorce Act.

Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

  • This information applies to British Columbia, Canada
  • Reviewed in June 2020
  • Time to read: 5 minutes

Reviewed for legal accuracy by

JP Boyd, Boyd Arbitration Chambers

JP Boyd, Boyd Arbitration Chambers

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This information from People’s Law School explains in a general way the law that applies in British Columbia, Canada. The information is not intended as legal advice. See our disclaimer.

Related

On Dial-A-Law

Dial-A-Law has more information on Divorce & separation in the section on Families + Children.