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Divorces in Alberta by their nature are disruptive.  When children are involved, family law has traditionally placed a priority on their physical and emotional needs due to the upheaval that they experience.  The Divorce Act amendment that came into effect on March 1, 2021, elevates the best interests of the child. It also includes updated legal terminology, recognition of family violence, and addresses relocation issues.

As you consider ending your marriage, you should understand these changes to the Divorce Act.  If you choose to go forward with a divorce, the new terminology and rules will impact the process.  You may choose to consult an Edmonton divorce lawyer when you have questions about how the modernized Divorce Act could apply to your family situation.

 

What Is the Divorce Act?

The Divorce Act is national legislation originally passed by Parliament in 1968. It outlines laws concerning divorce, separation, and child custody and support.  The act defines legal terms and rights and sets forth the process for dissolving a marriage.  The Court of the Queen’s Bench of Alberta oversees divorces within the province in accordance with this federal law and other provincial family laws.

 

Why Was the Divorce Act Amended?

The amendments within section 12 of Bill C-78 address a variety of issues, but the primary purpose of the update was to increase the importance of the best interests of the child when making decisions around parenting time relocation.  Although this principle has always held great legal importance, the amendment now directs courts to “only” consider the best interests of the child.

According to the Law Society of Alberta, other smaller changes in the amendment ease court burdens should an electronic hearing be needed or someone other than a parent needs to obtain or modify a contact order. New rules also apply to inter-jurisdictional applications.

 

Who Is Affected by the New Divorce Act Rules?

Anyone in Edmonton moving forward with a divorce after March 1, 2021, will follow the updated laws, terminology, and procedures as mandated by the amendment.  If you already initiated a divorce before the effective date but have not yet received a final divorce order, then your divorce will move forward under the new laws.

 

Overview of Divorce Act Changes for Alberta Families

Because the amendment represents the first major overhaul of the Divorce Act in decades, it covers plenty of legal territory.  For the most part, the changes fall into five major categories:

  • Legal terminology
  • Alternative dispute resolution
  • Best interests of the child factors
  • Family violence
  • Relocation

 

New Divorce Terminology

Lawmakers eliminated the old terms “access” and “custody” and replaced them with “parenting time” and “decision-making responsibility.”  Sometimes the previous terms caused confusion, and the new legal language may help people more fully understand their rights and responsibilities during the divorce process.

 

What Is Parenting Time?

This term describes the time that a parent and child spend together.  Parents have the right to determine the schedule for dividing their individual time with children as long as they agree and a court does not deem the schedule to interfere with the best interests of the child.

Generally, parents choose to split their parenting time on a mostly equal schedule or assign the bulk of parenting time to one parent while the other parent has the children less often.  Many reasons could prompt a parent to choose limited parenting time, such as a need or desire to live in a different location or an inability to provide an acceptable home for children.

 

What Is Decision-Making Responsibility?

Decision-making responsibility is not determined by the amount of parenting time that you have.  A parent who must travel for work and therefore cannot provide the primary parental household may still have full or partial decision-making responsibilities.  These responsibilities encompass the right to make major decisions about a child’s life in regards to education, religion, cultural traditions, health care, and extracurricular activities.  You may need the representation of a divorce lawyer to influence whether you have full decision-making responsibilities, partial control, or no input over decisions.

 

Alternative Dispute Resolution

The amendment promotes the goal of avoiding litigation whenever possible.  Mediation, collaborative family law, co-parenting counselling, and arbitration are all forms of alternative dispute resolution. According to the amendment, a divorce lawyer should advise you of these options and encourage you to explore ADR whenever feasible.  Negotiating divorce agreements privately could resolve problems faster than waiting for a court to issue a decision.

 

Factors Guiding the Determination of the Best Interests of the Child

Now that the best interests of the child are preeminent when making decisions in a divorce, the updated laws provide more guidance about the factors used to define the best interests of the child.  Previously, federal and Alberta laws offered little guidance beyond valuing the physical, emotional, and psychological well-being of a child.  The amended federal Divorce Act now lists certain factors.  However, a court may consider any pertinent issues even if they are not specifically included in the amendment.

Influential factors:

  • Child’s needs according to age and developmental status
  • Child’s relationship with each parent
  • Parental willingness to have a relationship
  • Parental history of caring for the child
  • Child’s preferences considered in conjunction with child’s maturity level
  • Child’s heritage
  • Willingness and ability of parents to cooperate with caregiving
  • History of family violence

 

Family Violence

The original Divorce Act and previous amendments contained no language about family violence.  The 2021 amendment now clearly defines family violence and requires judges to consider it when deciding on a contact order.  Among other issues, a judge must weigh the frequency or pattern of violence, nature of violence, and its physical, emotional, or psychological impact on the child.  The law specifies that the violence does not necessarily have to be inflicted directly on a child. Exposure to family violence represents an issue a judge should take into account. Additionally, conduct does not have to result in an actual criminal offence to qualify for consideration.

 

Relocation

After a divorce has been settled, occasions can arise when a parent wants or needs to move.  Legal changes now obligate a parent with any decision-making authority or parenting time to inform the other parent of the desire to move in writing 60 days prior to the intended move.  Court forms must be prepared.  The other party may consent or dispute the relocation.  If a court must decide the issue, the best interests of the child once again direct the outcome.

 

Updated Forms at the Court of the Queen’s Bench of Alberta

The changes to the Divorce Act have resulted in amendments to the Alberta Rules of Court. As of March 1, 2021, Alberta courts have updated their court forms to reflect the new procedures and terminology that now apply to divorces.

 

How Will the Changes Influence My Divorce in Alberta?

The changes to the Divorce Act will have the most bearing on parents who get divorced.  The best interests of the child must be satisfied at every turn as parenting time, contact, and decision-making responsibilities are determined.  If family violence is an issue in your case, the new law makes it much easier for a judge to recognize the seriousness of such events.

Every divorce revolves around factors and priorities unique to a family.  Talking to a divorce lawyer in Edmonton, Alberta, can clarify your legal position and help you negotiate an acceptable outcome.  You may even avoid the expense and delay of a courtroom battle through an enhanced legal emphasis on ADR.

At Kolinsky Law, you can access up-to-date legal advice as you navigate immediate and long-term decisions related to your divorce.  Solutions to complex and distressing family problems can be found when we advocate for your rights.  The changes to divorce law are meant to produce the best results for families.  Contact Kolinsky Law today for crucial guidance about your divorce.

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