Changes to the Divorce Act Part 2: The Best Interests of the Child

This year marks a significant change for Canada’s Divorce Act, which will get its first major overhaul since 1986. The Divorce Act, while federal, applies across Canada, and in addition to being the law under which divorces are granted also can determine child and spousal support.

The amendments make numerous changes, some procedural, but many substantive. In a series of three blogs, I discuss the following amendments:

Part 1: Amendments changing terminology relating to custody and access;

Part 2 (this blog): Establishment of a non-exhaustive list of criteria to consider when determining the best interest of the child, a key focus of the amendments; and

Part 3: Amendments that have been introduced to address family violence, to encourage the use of dispute resolution processes outside of court, and to simplify enforcement of family support obligations.

Part 2: The best interests of the child

In the last blog we summarized the changes in terminology in Canada’s Divorce Act that will be coming into effect on July 1, 2020, the first major changes to the Divorce Act in more than 30 years.

In this blog, we will discuss the non-exhaustive list of criteria that the amendments state a court should consider when determining the best interests of the child.  

The principle of the “best interests of the child” is to ensure that the child’s interests are front and centre when a court makes any determination regarding parenting. In the last blog we noted that the main orders involving children were “custody” and “access” orders but with the amendments coming into force, that terminology will refer to “parenting orders,” “parenting time,” and “decision-making responsibility.”

While the current Divorce Act obliges the court, when making a parenting or a contact order, to consider the best interests of the child by referring  to the “condition, means, needs and other circumstances of the child,” it does not list factors which the court must consider in deciding what is or isn’t in the best interests of the child. As a result, the factors that are now considered by the courts are often based on earlier court decisions. Under the new Divorce Act, courts will have a non-exhaustive list of factors to consider in determining a child’s best interests when making a parenting or a contact order. This list includes:

(a) the child’s needs considering the child’s age and stage of development;

(b) the child’s relationship with each parent;

(c) each parent’s ability to support the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences by considering the child’s age and maturity;

(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 to care for and meet the needs of the child;

(i) the ability and willingness of each person to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The new Divorce Act also states that when considering the above factors, the courts must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Most of these factors are already found in British Columbia’s provincial legislation, the Family Law Act. It also reflects the cases decided under the old Divorce Act. Thus, rather than changing the law, the new Divorce Act in effect codifies the law, providing some consistency and clarity to parents, courts and family law professionals.

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