A Brief Overview of Bill C-78, An Act to Amend the Divorce Act and Related Legislation: Part I

Bill C-78 was tabled for first reading in the House of Commons on Tuesday 22 May 2018 by theMinister of Justice. The bill addresses a variety of outstanding issues that have beenaccumulating over the past decade or so and represents the first truly significant amendment ofthe Divorce Act since the present act became law in 1985; the Child Support Guidelines, aregulation to the act, were introduced in 1997. The bill must yet endure second reading, thecommittee process, the report stage and third reading in the House of Commons beforeproceeding to the Senate to repeat the process. There is about a year left in the currentlegislative session within which the bill must pass both chambers or die on the order table.It is possible, but unlikely, that the bill will become law in its current form. Proposals foramendment may be made by both the House and Senate committees and are probable duringthe report stage. At present, the bill represents the will of government but is subject to change;the final form of any resulting legislation is at present unknown. Although other attempts toamend the Divorce Act have been tabled in the past and failed to become law, it is nonethelessimportant for family law lawyers and judges dealing with family law cases to appreciate theamendments proposed in the present bill.The bill proposes a number of significant reforms that will reshape family law in Canada. The billowes much to the legislatures of Alberta and British Columbia. Alberta’s Family Law Act becamelaw in 2003, repealing the former Domestic Relations Act, and replacing language about custodyand access with “parenting orders” that allowed the court to allocate or share the “powers,responsibilities and entitlements of guardianship” among guardians, allocate “parenting time”to guardians and allowed persons other than guardians to apply for “contact” with a child. Thiswas the same approach to terminology taken in British Columbia’s 2011 Family Law Act, whichalso added a lengthy list of factors, including family violence, to be considered in determiningthe “parenting arrangements” that are in the best interests of the child, a test to assist thecourt in determining relocation applications, and a number of admonitions designed to encourage parties and counsel to pursue dispute resolution options other than litigation. Thecase developing in these provinces, British Columbia in particular, may be of assistance ininterpreting whatever changes may eventually be made to the Divorce Act.

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