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 (“Bill C-78”) will come into force on July 1, 2020.
Bill C-78 has four main goals including “promoting the best interests of children, addressing family violence, reducing child poverty, and improving the efficiencies and accessibility of the family justice system.” These are laudable objectives and in spite of some criticism from stakeholders, Bill C-78 is a positive step towards more modern legislation that reflects the lived experiences of Canadian families.
In order to effect Bill C-78 (a federal law), the Federal Government has proposed changes to the existing Federal Child Support Guidelines and the Central Registry of Divorce Proceedings Regulations. These regulatory changes are necessary to:
- Ensure consistent terminology and approaches across related statues and policies;
- Prevent any legal void;
- Support and comply with the amendments to the Divorce Act; and
- Improve the efficient of processes, including rules relating to the calculation and recalculation framework under the Divorce Act.
For example, the Federal Government is proposing to change the terminology in the Federal Child Support Guidelines to mirror the terminology in Bill C-78 as follows:
- “Access” will be changed to “parenting time”;
- “Shared custody” will be changed to “shared parenting time”; and
- “Split custody” will be changed to “split parenting time.”
These changes are eminently reasonable. In order for family legislation to be effective and accessible, it has to be clear and consistent, which is why it is so important to ensure consistent language and terminology across the board. To do so avoids unnecessary confusion among family law litigants, practitioners, and judges alike.
The Federal Government is also proposing a new regulation, the Notice of Relocation Regulations. Pursuant to Bill C-78, if a parent wishes to relocate with a child the moving parent must give the non-moving parent at least 60 days notice. The Notice of Relocation Regulations prescribe a standard notice form to be used in these situations. Use of a standard form is one way to limit conflict; if the standard form is correctly filed out then the moving parent can be confident that they have provided all the relevant information to the non-moving parent without having to incur the cost of a lawyer to draft a ‘notice letter.’
Notwithstanding the Federal Governments attempts to provide a comprehensive Bill C-78 package, if Bill C-78 is to have the intended impact then the Provincial and Territorial Governments must also make changes to their existing court rules and forms. Prior to the onset COVID-19, it was widely anticipated that Provincial and Territorial Governments across the country would revisit their family law forms and rules and may even amend their provincial/territorial family law legislation to mirror the language of Bill C-78.
Instead, the nation’s attention has shifted to address the onset of COVID-19. With all levels of government rightly focused on the health and safety of Canadians, what happens next for Bill C-78?
As far as we know, the Bill is still scheduled to come into force on July 1, 2020. In light of the circumstances, it is unlikely that Ontario Premier Doug Ford will have the time or resources to devote to updating Ontario’s court forms and the Family Law Rules to respond to Bill C-78. While this will likely result in some initial confusion, family lawyers and judges are nothing if not adaptable – I anticipate that we will see court forms modified by counsel and judges ready to apply the new law without delay.