Background

Bill C-78 is the first substantial revision of Canada’s family laws in 30 years. The bill has four key objectives: to promote the best interests of the child, address family violence, help reduce child poverty, and make Canada’s family justice system more accessible and efficient.

Today, jurisdiction over laws governing divorce, separation of unmarried partners, custody and support, and division of property is shared between federal and provincial/territorial governments. Prior to the passing of the Divorce Act in 1968, divorce law varied from province to province. The Divorce Act was replaced by a new version, bearing the same name, in 1985.

The current Divorce Act focuses on the breakdown of the spousal relationship. Bill C-78 primarily addressed the parent-child relationship, and sought to protect families, particularly children, from negative outcomes associated with partner separation.

Why it matters

According to Census 2016, two million children live in families with separated or divorced parents. Canadian families have changed significantly in the 30 years since the Divorce Act last underwent reform. This bill now recognizes and reflects these changes, and offers solutions to common complaints about the family court system, which is often criticized as expensive and time-consuming, with cases stretching on for years and costing families tens of thousands of dollars. Bill C-78 strongly encourages parents to find alternative dispute resolution processes, such as mediation, which are less adversarial and more affordable than traditional court proceedings. Lawyers are now required to encourage their clients to attempt to resolve their disputes through such alternatives.

The new legislation abolishes the terms “custody” and “access,” language that often promotes conflict, in favour of terms like “decision-making responsibility” and “parenting time.” The bill mandates that the best interest of the child be the only consideration when working out a parental arrangement, and gives children a voice in the process, weighing their preferences against their age and maturity. It contains a requirement that courts consider family violence in cases of divorce or separation, and proposes a research-based statutory definition of family violence. In determining the bests interests of the child, courts will now also be required to consider a child’s cultural and linguistic heritage and upbringing. In addition, Bill C-78 strengthens the court’s ability to enforce child support.

Senator Boyer believes the Divorce Act must be viewed through a culturally relevant, gender-based analysis. While the proposed definition of family violence recognizes that such violence manifests itself in many forms, it does not specify that those who experience such violence overwhelmingly identify as women. Further, a 2014 Statistics Canada survey found that Indigenous women in particular were more than three times as likely to report family violence than non-Indigenous women. Such violence is often a barrier to escaping poverty. We simply could not wait another 20 years for an intersectional gender-based analysis of family violence.

Status

Bill C-78, 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, received Royal Assent on June 21, 2019.

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