To get a ‘simple, uncontested’ divorce still involves a court application, although it is largely paperwork. If you have settled “kids, money and property” fairly and legally – for example by way of a Separation Agreement – your divorce application should be straightforward. If there are dependent children, you will have to show that the legal arrangements that you have made regarding parenting of your children and child support are in sync with the divorce legislation. An experienced family law lawyer can assist in the negotiation and preparation of a Separation Agreement that will hopefully meet this criteria.
Divorce Act Changes in 2019: Claims Regarding Children and Support
If you are bringing a divorce lawsuit along with claims regarding children and support, recent amendments to the Divorce Act will be very important. As at the end of June 2019, the amendments had cleared Parliament but were not yet in effect. That may still take months.
If you are bringing first time claims regarding children and support without a divorce, the Divorce Act will not apply. This covers both married spouses who are not divorcing as well as common-law spouses. Those kinds of court claims will continue to be dealt with under provincial legislation. In Ontario, this involves the Ontario Children’s Law Reform Act and the Family Law Act.
These Federal and Provincial statutes have never been identical in wording. However, our courts have tried to ensure a basic similarity between the way in which custody and/or support cases are handled under either set of statutes. The Divorce Act amendments however change some terminology significantly and contain a number of new criteria, particularly when dealing with children.
Gone are the words “custody” and “access” from the divorce legislation in favour of “parenting”. The terms custody and access however remain under Ontario’s Children’s Law Reform Act. Perhaps one day Ontario will amend its own legislation and make similar changes in terminology however, in the meantime, there may be significant confusion.
Here is a quick summary of the major Divorce Act amendments:
1. As I have stated, the Divorce Act amendments refer to “parenting orders” and “decision making responsibility” in lieu of the term custody. They refer to “parenting time” in lieu of access. They also contemplate what is known as “contact orders” which may allow for time with other individuals including a grandparent. The change in terminology may be a good thing. Too often needless time and money is spent in court over the “custody” label and it is too often perceived as a winner/loser situation. It also allows for greater flexibility in decision making between the two parents.
2. The law has always focused on the “best interests of the child” however, that is a very broad concept and often each side to a dispute will articulate their own positions often favourable to themselves. In existing legislation, there are already guideposts to best interests and a number of criteria are listed. The amendments contain an increased focus on a child’s owns views and preferences. They also emphasize in more detail than previously culture, linguistic, religious and spiritual upbringing and heritage. They include reference to indigenous upbringing and heritage. There is also an emphasis on a child’s physical emotional and psychological safety, security and well-being. The previous Divorce Act did not go nearly as far in setting out criteria.
3. The presence of family violence receives an increased emphasis as a criterion as it will normally affect the best interests of the child. There are provisions for supervised parenting time and transfers. When there are criminal proceedings, child protection matters involving a Children’s Aid Society and family law cases in court, there can be a lack of coordination between them. The amendments have as a purpose the promotion of greater coordination.
4. One of the greatest sources of litigation and conflict arises when one parent proposes to change the ordinary residence of the children to a more distant community. The amendments provide a more detailed framework for dealing with that issue including detailed provisions regarding the giving of notice from one parent to the other. We also note that when there is shared responsibility for the care of the child more or less equally, there is a presumption against a relocation. When one parent clearly has the primary responsibility for the care of a child, the starting point is in favour of a relocation.
5. There are new duties specified for parents including protecting them from conflict, resolving disagreements through family dispute resolution and the ongoing provision of financial and other types of information.
6. The amendments spell out a new obligation for legal advisors – mainly lawyers – to encourage the use of alternate means of resolving family disputes. It creates new obligations on practitioners to educate their clients regarding their duties under the legislation and to refer them to other family justice services that would assist them in resolving issues or complying with an order or decision.
7. It is still rather cumbersome to update child support arrangements on an ongoing basis especially when incomes change. The amendments contain provisions that are designed to assist in the recalculation process and avoid the need to resort to judge made orders for the recalculation in clear cut cases.
8. There are enhanced provisions regarding enforcement of support orders, to the extent that these involve the federal government. You will still be dealing with Ontario’s Family Responsibility Office for enforcement however, in many cases (such as income tax returns) the cooperation of federal agencies is very important.
I know that this is somewhat long and dry stuff. If there is an important take away message, it may be this: If you go to divorce court, get rid of the old notions of “custody” and be prepared to deal with parental decision making and responsibilities in a more comprehensive, detailed and perhaps creative manner.