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Bill C-78

Changes Regarding Child Custody

Divorce Act changes proposed apply only in circumstances where legally married co-parents are divorcing.  Provincial and territorial family legislation applies to separations in other circumstances.

Bill C-78 makes major amendments to the Divorce Act, Family Orders and Agreements Enforcement Assistance Act, and the Garnishment, Attachment and Pension Diversion Act, focusing mainly on the best interests of the child. Since the Act focuses on the best interests of the child, there are provisions in place to create a duty for parents to exercise their responsibilities in a manner consistent with the best interests of the child, a non-exhaustive list of factors relating to the child’s well-being. There will also be provisions relating to the resolution of disputes regarding relocation after separation and divorce. The concept of “decision making responsibility”, as in making significant decisions about the child’s wellbeing such as education, language, religion, and significant extra-curricular activities. Allocation of this responsibility can be to one or both parents, and specific decisions may be allocated to specific parents.

Terms such as “custody” and “access” will be replaced with “parenting orders” and “parenting time”. This will aid in alleviating any sort of feelings such as the notion that there is a “winner” and “loser” after litigation, due to the connotation of ownership in the words “custody” and “access”. Similarly, the “maximum contact principle”, which suggests children should spend as much time possible with each of the parents if the court sees this as safe for the child, will be changed to “maximum parenting time”. To further discuss the safety of the child, in instances of family violence, there will be a consideration of multiple factors such as the nature and seriousness of the violence, whether it is a patterned, coercive and controlling behaviour, whether the person has taken steps to prevent violence and improve their parenting. These factors are now specifically mentioned in the legislation. The Act also includes provisions relating to the relocation of a child after the move of one parent and requires a reconsideration of the best interests of the child to address the relocation. Bill C-78 has three broad requirements for the changes of residence and relocation: notice of a proposed change of residence or relocation, additional best interests criteria for relocation cases, burdens of proof that would apply in certain relocation cases. This Bill makes the necessary changes to ensure a more child centered approach to child custody and access.

Another main change to the Divorce Act, and one which concerns this research, is the encouragement of use of family dispute resolution processes and other family justice services in place of litigation. This is due to its strain on the justice system, the benefit it provides to both parents and children, and the opportunity to gain more control over the situation in a less adversarial process. This may be one of the most notable change in the Divorce Act as it removes the typically stressful court situation and allows families to use their own conflict resolution skills with the help of a mediator to tailor their parenting orders and parenting time to their unique situation. Another relevant change would be in cases of child support in which families of low-income struggle to support the child. Bill C-78 allows courts to obtain federal disclosure of income to accurately judge the capabilities of each parent to pay child support.


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