Divorce Act reform the latest victim of the coronavirus crisis

By LegalMatters Staff • The COVID-19 crisis claimed another casualty recently when it was announced the long-awaited changes to the federal Divorce Act would be shelved until next spring, says Toronto family lawyer A. Julia P. Tremain.

Comprehensive reforms to the Act were slated to go into effect in July, but the federal government pushed the introduction back to March 2021.

“There are significant changes to the Act. They were seen as positive so the delay is difficult because everybody has been acting as if we were moving forward. Now we have to wait,” says Tremain, a partner with Waddell Phillips Professional Corporation. “The Divorce Act hasn’t been updated since 1985. It was a long time coming. So, it is a bit frustrating that it has been delayed.”

COVID complication

She says the postponement is “just another thing we have to deal with because of COVID, which has made things more complicated.” However, the delay could have a silver lining.

“There have been so many changes during the pandemic,” Tremain tells LegalMattersCanada.ca. “Just keeping track of what’s happening with all the different courts and court processes can be a challenge. The reform to family laws could very well be way down the list in terms of just figuring out the court process because of COVID.”

In announcing the move, Justice Minister David Lametti said federal and provincial governments are dealing with the pandemic, noting that time will be needed to adjust to the amendments.

“The Divorce Act is federal legislation. The provinces and territories have their laws and they are going to have to update the language of their legislation as well,” Tremain explains.

Comprehensive reforms

The reforms are comprehensive, she says, changing words such as “custody” and “access” with terminology that focuses on parents’ responsibilities for their children.

According to the legislative background on the change, “family law academics have written that this change in terminology supports children’s best interests by helping to reduce parental conflict. The amendments introduce ‘parenting orders’ and ‘contact orders’ through which courts could provide specific direction on the care of children.”

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“It also changes provisions when someone wants to relocate, clarifying who has to prove what’s in the best interest of the children if a parent wants to move,” Tremain says. “There are changes dealing with domestic violence and acknowledging that it exists. If there’s a concern then courts should take that into account. It’s a more robust way of adjudication.”

The objectives of the Divorce Act amendments are to:

·    Promote the best interests of the child;

·    Address the issue of family violence;

·    Help to reduce child poverty; and

·    Make the family court system more accessible and efficient.

‘Using the new language’

While disappointed that the new reforms did not go ahead as planned, Tremain says many in the profession have already started to adopt some of the principals “using the new language.”

She says for now, the family law profession is working to keep cases moving forward. 

“There’s still a backlog but things have improved. The courts are certainly much more available but it can be difficult to keep on top of what the different courts are doing,” says Tremain, adding the postponement will “not cause a delay per se.”

“Cases are still proceeding, notwithstanding COVID, but it does mean that these positive changes will not come into force until early next year, which means that litigants will not be able to rely on them yet.”