First Major Changes to Divorce Act since 1985

On May 22, 2018 the Federal Government introduced Bill C-78, which proposes changes to the Divorce Act. The proposed amendment would be the first significant revision to the Divorce Act since its enactment in 1985.

The changes to the Divorce Act are designed to implement a more “child-focused” approach to family law disputes, rather than an adversarial approach. By removing language like “custody” and “access,” and encouraging dispute resolution, the Act is designed to better promote the interests of the child.

The Minister of Justice, Jody Wilson-Raybould, summarizes the changes as follows:

(a) replace terminology related to custody and access with terminology related to parenting;

(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;

(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;

(d) introduce measures to assist the courts in addressing family violence;

(e) establish a framework for the relocation of a child; and

(f) simplify certain processes, including those related to family support obligations.

If this Bill passes in the House of Commons, the legislation will likely come into force in 2019.

Thus far, most family law practitioners and commentators view the proposed changes positively. However, some state the impact of these amendments will depend on how courts across Canada would apply the new provisions. We note that the common-law in Canada already requires the courts to apply a “child-centric” test and only consider the “best interests of the child” when making decisions regarding custody and access (or “parenting time” rather) (Young v. Young, [1993] S.C.J. No. 112). However, the proposed changes to the terminology should help reduce the “win/lose” mentality of many individuals involved in family law disputes.

To view Bill C-78 in its entirety, check out the link below:

https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading

To view the Divorce Act (1985), check out the link below:

https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html

Child Support: Can I just pay the child directly?

Not a week goes by that I do not hear the question: “can I pay child support directly to him/her (the child)?”. This question is usually followed by a discussion of why he or she (the other parent) is not spending the child support on the child. In this parent’s theory, the other parent is using the child support funds to go on extravagant trips and other luxury items that are not related to the child’s care. Hence, “why can’t I just pay him/her directly? Then atleast I will know that the funds are going toward the intended purpose.”

The answer to this question is that courts rarely allow child support payments to be made directly to a child; it is the exception rather than the rule. Courts in Canada have stated that compelling reasons must exist for payments to be made directly to a child. In Mylrea v. Benoit, 2003 CanLII 1975 (ON SC), the Ontario Superior Court responded as follows to a father’s request to set up a trust to pay child support directly to the children:

[31]      Mr. Mylrea requests the right to limit the amount of child support that goes directly to Ms. Benoit to the sum of $248.00 each month, with the balance to be paid into a trust account for the benefit of the children.  Again, even if I were inclined to do that – and I am not in the least – authority prevents me from doing so.  In Simon v. Simon (2000) 1999 CanLII 3818 (ON CA), 1 RFL (5th) 119 (Ont.C.A.), MacPherson, J.A., in delivering the judgment of the court, said this (at page 134 of the Report):

 ——-

It may be that in some cases a court imposed trust to secure funds for a child’s future care and education would be appropriate.  However, in my view, absent a good reason for imposing a trust, the court should not do so.  The presumption should be that a custodial parent will do his or her best to provide for both the child’s immediate needs and his or her future care and education.  Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent) I see no reason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody.

                                                                (emphasis added)

In L. B. L. v. S. B., 2010 NBQB 339 (CanLII), Justice Walsh of the Court of Queen’s Bench of New Brunswick dealt with a situation where the payor mother was attempting to create her own system of child support payments to her child on the grounds that the father wasted funds meant for the child:

[65]      On the totality of the evidence it is clear that the mother cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment. By any means, by any claim, the mother has now sought to create her own system, to permit her to directly support or reward the children for her own purposes, to ignore the law’s requirements. The receipted claims she made in this case and the claims she has filed with Revenue Canada constitute clear evidence of her present approach. The irony is that the vast majority of the arrears that were terminated in May 2009 were for a period when the mother was having little, if any, contact with the children, and the children would appear to have forever lost this money owed to them (See: Beninger v. Beninger 2009 BCCA 145 (CanLII)).

[66]      In these circumstances I apply Swiderski v. Dussault:

While D.B.S. [v. S.R.G. et. al., 2006 SCC 37 (CanLII)] at para. 109, opens the theoretical possibility that the payor parent can justify himself by showing total payments equivalent to the Guidelines amounts, this, I suggest, presupposes candour, openness and satisfactory proof of the amounts. None is present in this case.

There are at least two reasons why payors should not be able to create their own support regimes. The first is that the receiving parent usually has custody, and must be the one to make decisions about the child’s expenditures. A private unilateral scheme operated by the payor can be a method of control which undermines the authority of the custodial parent. The second reason is that the payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record-keeping …

(2009 BCCA 461 (CanLII),at paras. 38, 39) (emphasis added)

These cases stand for the proposition that child support is meant to maintain a child’s permanent home and to cover the incidentals that a custodial parent provides to a child (see Armaz v. van Erp, 2000 CanLII 22585 (ON SC) ). I often explain it this way to clients: just think of how much you might spend on the children or other incidentals if you were still living in the same home with the other parent. Wouldn’t it likely be more than you are spending right now? And regardless of whether these funds go directly toward the children or not, there are certain expenses the other parent must pay to keep the children’s quality of life similar to what they would have experienced if you were living with the children, correct?

As stated earlier, there are some exceptions to this rule, such as when the parents’ relationship is extremely acrimonious and the child lives away at school (see B. (T.T.) v. D. (P.H.), 2014 NBQB 164).

Top 5 Myths about Family Law disputes

  1. Myth: Behaviour of the other person matters in a divorce hearing as to whether your divorce is granted.

Response: No. Since the June 1, 1986 amendments to the Divorce Act, the sole criterion for divorce is “marriage breakdown.” Divorces are now described as “no fault” in Canada.

  1. Myth: If I do not consult a lawyer and do not respond to legal papers for long enough, the problems will go away.

Response:  False. I often use the analogy that legal issues are like your car. When your change oil light comes on, you can choose to immediately take your car to the shop to get an oil change. Better yet, you may wish to schedule regular maintenance. If you do so, the costs are usually less and the issues are easier to manage. If you disregard your car’s oil change light for too long (I may have some experience in this department), it will likely cause issues with the transmission  and you will end up costing yourself far more time and money. Similarly, legal issues (especially family law issues), never go away. If you owe child support today, you will end up owing more later.

  1. Myth: If I embarrass my (soon to be) former spouse, I can get more out of the divorce.

Response: False. Remember my post here on a case in Ontario, where the judge blasted a couple for spending $500,000 combined fighting with each other about custody issues. Think about that for a moment. $500,000! These were not extremely wealthy people. I believe one was a police officer. This kind of fighting and embarrassment did no one any good.

  1. Myth: I have to go to Court to get what I want.

Response:  False. There are many options available to divorcing couples that can be more cost-efficient, rewarding and effective than court. You may choose to participate in mediation. I have seen this work extremely well and both parties walked away with their sanity and their relationships with their children were strengthened. You may choose to work with collaborative law lawyers, who can bring both parties to the table to ensure that each person’s interests are discussed and solutions are reached that reflect what each person wants out of the divorce.

  1. Myth: Whether you pay child support depends on whether you get access to a child (for the payor) and whether you grant access to the other parent depends on whether they are paying child support.

Response: False. For the most part, child support and custody and access have nothing to do with each other under the Divorce Act, the provincial legislation and the Federal Child Support Guidelines. The exception to this rule is that the amount of child support payable can change depending on whether the access parent has access to a child over 40% of the time over a year pursuant to section 9 of the Federal Child Support Guidelines. Conversely, whether someone pays child support or not should not determine whether they are granted access to their children. I know it’s hard to grant access to someone who doesn’t want to be responsible for his/her child, but you are only hurting the child when you deny access for this reason!

As always, these posts are strictly for educational/information purposes only and do not constitute legal advice. Please consult our Website Disclaimer regarding terms of use and representations. Should you have any specific questions about your situation, please contact us.