New Changes to the Divorce Act

19 February 2021

Prior to 1968, there were no uniform federal laws pertaining to divorce in Canada. Prior to the Divorce Act, there were a series of patch-work laws that depended on the province. Understandably, this could create confusion from province to province.

The creation of the Divorce Act brought with it more consistency and uniformity to divorce laws across Canada. The changes to the Divorce Act are comprehensive, so this post will serve as a brief overview of the changes that are coming. 

These changes take effect on March 1, 2021, which means that some may have an immediate interest in how the changes can impact them.

A Quick Historical Look at the Divorce Act

Previously, there has never been anything within the Divorce Act when it comes to alternate forms of dispute resolution (IE: mediation). Those entering the divorce process have a single natural instinct. That instinct is to find a divorce judgment and then bring a court application.

That gut instinct usually applies whether the situation can be potentially resolved by the courts or not. Moreover, each of the provinces had the responsibility of developing their own set of court processes.

Some of those provincial courts included alternative dispute resolution (ADR) processes built in within the divorce court process. The problem is that that those ADR processes weren’t mandated within the legislation.

Considering Fairway Divorce has specialized its services in mediation, it is easy to see how big an impact this can be.

So, What are the Changes to the Divorce Act?

For starters, these changes were meant to come back in the summer of 2020. Unfortunately, a global pandemic got in the way of a lot of things. As a result, these mandates have been pushed back to March 1, 2021 instead.

It is also important to note that this is the first substantial change to the Divorce Act since 1985. One of the benefits of the Divorce Act is that there aren’t a whole lot of arbitrary changes that come on a yearly basis. When changes are made, they are of the substantial variety.

It is also worth noting that the majority of the changes are focused on one thing. These changes put a refocusing on the legislation surrounding the best interests of the children in divorce.

These changes include greater detail on what constitutes family violence, for instance. There are also more detailed considerations when it comes to the factors included in the best interests of the child. These changes will closely mimic the Alberta and British Columbia provincial legislations on the matter.

The Divorce Act changes will also set out specific procedures pertaining to case law. These procedures will entail the applications and issues that arise through case law, such as obility applications (among others).

Alternative Dispute Resolution (ADR)

There is a new clause in particular that has been added to the Divorce Act that is part of the duties of a party to an action: Family Dispute Resolution Process. 7.3: To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process. For additional notes, check out Justice Law.

What is the Reason for this Change to the Divorce Act?

So, what is the driving force behind these changes? Why implement the first major change to the Divorce Act since 1985?

Well, it is generally both faster and less expensive to resolve issues through negotiation. Whether that be through mediation or another dispute resolution process, it is cheaper and quicker than through traditional court proceedings.

The Best Interests of the Children

In those cases involving children, there are particular advantages to be had by developing agreements through dispute resolution. For one, children will benefit from seeing their parents work together. In a contentious split, where things turn ugly, that impact can be felt by the children and follow them for years to come.

Dispute resolution processes, like mediation, have a general aim to keep the focus of the parents on the children’s best interests. When things become particularly ugly, that focus can be lost in favor of other areas. Disputes tend to be more amicable when both parents keep the best interests of the children at heart.

Moreover, alternate dispute resolutions improve the communication skills that those divorce parties will need going forward. In a divorce, the disputes do not end when the divorce is finalized. With co-parenting necessities, those disputes will come up again. Having improved communication skills means an improved ability to handle those issues in the future.

Fairway Divorce, the Divorce Act, and ADR Implementation

For years, Fairway Divorce has prided itself on providing the very best in mediation services. We understand the difficulty and hardship that can come in divorce, particularly those that are quite contentious.

To learn more about the changes to the Divorce Act and how they may impact your divorce proceedings, we are happy to help. Our team of knowledgeable experts can provide any clarification needed as you move through with your divorce.

Dispute resolution is essential in a successful divorce. Both parties deserve to be heard. They deserve to come out on the other side happy and ready to move forward. Traditional divorce proceedings are meant to drag things out, costing divorcing parties more than they imagined financially and emotionally.

Simply put there is a better way of going through divorce. With alternative dispute resolution services from Fairway, we can change the way divorcing couples look at the process of divorce. Look forward to a new chapter in life rather than how you can possibly get through what is currently happening.