An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (S.C. 2019, c. 16)
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Assented to 2019-06-21
R.S., c. 3 (2nd Supp.)Divorce Act (continued)
8 The Act is amended by adding the following after section 7:
Duties
Parties to a Proceeding
Marginal note:Best interests of child
7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.
Marginal note:Protection of children from conflict
7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.
Marginal note:Family dispute resolution process
7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.
Marginal note:Complete, accurate and up-to-date information
7.4 A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.
Marginal note:Duty to comply with orders
7.5 For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.
Marginal note:Certification
7.6 Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a party to a proceeding shall contain a statement by the party certifying that they are aware of their duties under sections 7.1 to 7.5.
Legal Adviser
Marginal note:Reconciliation
7.7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.
Marginal note:Duty to discuss and inform
(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act
(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;
(b) to inform the person of the family justice services known to the legal adviser that might assist the person
(c) to inform the person of the parties’ duties under this Act.
Marginal note:Certification
(3) Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that they have complied with this section.
Court
Marginal note:Purpose of section
7.8 (1) The purpose of this section is to facilitate
Marginal note:Information regarding other orders or proceedings
(2) In a proceeding for corollary relief and in relation to any party to that proceeding, the court has a duty to consider if any of the following are pending or in effect, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so:
(a) a civil protection order or a proceeding in relation to such an order;
(b) a child protection order, proceeding, agreement or measure; or
(c) an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature.
In order to carry out the duty, the court may make inquiries of the parties or review information that is readily available and that has been obtained through a search carried out in accordance with provincial law, including the rules made under subsection 25(2).
Marginal note:Definition of civil protection order
(3) In this section, civil protection order means a civil order that is made to protect a person’s safety, including an order that prohibits a person from
(a) being in physical proximity to a specified person or following a specified person from place to place;
(b) contacting or communicating with a specified person, either directly or indirectly;
(c) attending at or being within a certain distance of a specified place or location;
(d) engaging in harassing or threatening conduct directed at a specified person;
(e) occupying a family home or a residence; or
(f) engaging in family violence.
9 Section 9 of the Act is repealed.
10 Subsection 11(4) of the Act is replaced by the following:
Marginal note:Definition of collusion
(4) In this section, collusion means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the exercise of parenting time or decision-making responsibility.
Marginal note:1997, c. 1, s. 2
11 Section 15 of the Act and the heading “Interpretation” before it are repealed.
Marginal note:1997, c. 1, s. 3
12 Section 16 of the Act and the heading before it are replaced by the following:
Best Interests of the Child
Marginal note:Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Marginal note:Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Marginal note:Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(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 in respect of whom the order would apply to care for and meet the needs of the child;
(i) 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;
(j) any family violence and its impact on, among other things,
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Marginal note:Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Marginal note:Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Marginal note:Maximum parenting time
(6) In allocating parenting time, the court shall 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.
Marginal note:Parenting order and contact order
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
Parenting Orders
Marginal note:Parenting order
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
Marginal note:Interim order
(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.
Marginal note:Application by person other than spouse
(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.
Marginal note:Contents of parenting order
(4) The court may, in the order,
(a) allocate parenting time in accordance with section 16.2;
(b) allocate decision-making responsibility in accordance with section 16.3;
(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(d) provide for any other matter that the court considers appropriate.
Marginal note:Terms and conditions
(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
Marginal note:Family dispute resolution process
(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.
Marginal note:Relocation
(7) The order may authorize or prohibit the relocation of the child.
Marginal note:Supervision
(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.
Marginal note:Prohibition on removal of child
(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.
Marginal note:Parenting time — schedule
16.2 (1) Parenting time may be allocated by way of a schedule.
Marginal note:Day-to-day decisions
(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.
Marginal note:Allocation of decision-making responsibility
16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.
Marginal note:Entitlement to information
16.4 Unless the court orders otherwise, 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.
Contact Orders
Marginal note:Contact order
16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.
Marginal note:Interim order
(2) The court may, on application by a person referred to in subsection (1), make an interim order providing for contact between that person and the child, pending the determination of the application made under that subsection.
Marginal note:Leave of the court
(3) A person may make an application under subsection (1) or (2) only with leave of the court, unless they obtained leave of the court to make an application under section 16.1.
Marginal note:Factors in determining whether to make order
(4) In determining whether to make a contact order under this section, the court shall consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.
Marginal note:Contents of contact order
(5) The court may, in the contact order,
Marginal note:Terms and conditions
(6) The court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
Marginal note:Supervision
(7) The order may require that the contact or transfer of the child from one person to another be supervised.
Marginal note:Prohibition on removal of child
(8) The order may provide that a child shall not be removed from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.
Marginal note:Variation of parenting order
(9) If a parenting order in respect of the child has already been made, the court may make an order varying the parenting order to take into account a contact order it makes under this section, and subsections 17(3) and (11) apply as a consequence with any necessary modifications.
Parenting Plan
Marginal note:Parenting plan
16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.
Marginal note:Definition of parenting plan
(2) In subsection (1), parenting plan means 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.
Change in Place of Residence
Marginal note:Non-application
16.7 Section 16.8 does not apply to a change in the place of residence that is a relocation.
Marginal note:Notice
16.8 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
Marginal note:Form and content of notice
(2) The notice shall be given in writing and shall set out
Marginal note:Exception
(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence.
Marginal note:Application without notice
(4) An application referred to in subsection (3) may be made without notice to any other party.
Relocation
Marginal note:Notice
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
Marginal note:Content of notice
(2) The notice must set out
(a) the expected date of the relocation;
(b) the address of the new place of residence and contact information of the person or child, as the case may be;
(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
(d) any other information prescribed by the regulations.
Marginal note:Exception
(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.
Marginal note:Application without notice
(4) An application referred to in subsection (3) may be made without notice to any other party.
Marginal note:Relocation authorized
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
(b) the following conditions are satisfied:
(i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
(ii) there is no order prohibiting the relocation.
Marginal note:Content of form
(2) The form must set out
(a) a statement that the person objects to the proposed relocation;
(b) the reasons for the objection;
(c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
(d) any other information prescribed by the regulations.
Marginal note:Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) 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;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) 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 the travel expenses; and
(g) 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 the likelihood of future compliance.
Marginal note:Factor not to be considered
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
Marginal note:Burden of proof — person who intends to relocate child
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Marginal note:Burden of proof — person who objects to relocation
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
Marginal note:Burden of proof — other cases
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
Marginal note:Power of court — interim order
16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.
Marginal note:Costs relating to exercise of parenting time
16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.
Marginal note:Notice — persons with contact
16.96 (1) A person who has contact with a child of the marriage under a contact order shall notify, in writing, any person with parenting time or decision-making responsibility in respect of that child of their intention to change their place of residence, the date on which the change is expected to occur, the address of their new place of residence and their contact information.
Marginal note:Notice — significant impact
(2) If the change is likely to have a significant impact on the child’s relationship with the person, the notice shall be given at least 60 days before the change in place of residence, in the form prescribed by the regulations, and shall set out, in addition to the information required in subsection (1), a proposal as to how contact could be exercised in light of the change and any other information prescribed by the regulations.
Marginal note:Exception
(3) Despite subsections (1) and (2), the court may, on application, order that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or modify them, if the court is of the opinion that it is appropriate to do so, including where there is a risk of family violence.
Marginal note:Application without notice
(4) An application referred to in subsection (3) may be made without notice to any other party.
- Date modified: