Families Have Changed: New Legislation is Finally Catching Up

Although legislation may seem quite uninteresting to many, it does have a very significant impact on families separating in Canada and the outcomes of family law matters. The legislation reflects how the family structure is viewed in society and when laws are not updated or modernized in the way Canadian families have changed over the years, it can create big issues. Gone are the days where dad was considered the breadwinner and mom was the stay-at-home wife. These stereotypes have been thrown out the window for many years now and it is time that the outdated legislation in Canada changes to align with the modern family structure.

Times have changed and we must celebrate these changes in legislation.

On June 21, 2019, the federal government passed Bill C-78 to implement changes to the federal Divorce Act. The changes to the Divorce Act will come into force on March 1, 2021.

Following suit with the changes made by the federal government, it was only a matter of time before Ontario also brought long-awaited change to the Children’s Law Reform Act, and other legislation affecting families, by way of Bill 207 which came into effect on September 24, 2020.

Ontario Attorney General, Doug Downey stated, “we’re proposing common-sense changes to simplify Ontario’s family law system, allowing parents and guardians to spend less time on paperwork and court appearances and more time making plans to support and care for their children…families encounter the family law system in some of life’s most difficult moments, and the changes we are proposing will make the process easier to navigate and understand for parents and their children.”

Bill 207 is important because if passed, it will ensure that the provincial legislation will be aligned with the recent changes to the federal legislation, meaning that families will be governed by similar laws notwithstanding whether their claim is being brought under the federal legislation in the case of married spouses, or provincial legislation in the case of unmarried spouses.

With the federal and provincial legislation being aligned, separating spouses can take comfort knowing that children of both married and unmarried spouses would be treated in the same manner, under either legislation.

What is Bill 207?

Bill 207 also known as the Moving Ontario Family Law Forward Act is provincial legislation that has been designed to simplify the justice system for families and to protect children.

The Moving Ontario Family Law Forward Act, 2020 aims to accomplish three significant objectives which will make the family law process easier, faster and more affordable for litigants:

1. make the family law appeals process clearer and easier to navigate by

• clarifying when and how family law cases can be appealed,
• help families reach final decisions faster in difficult cases; and,
• make the appeals process more consistent no matter where their trial is heard.2. align Ontario’s family laws with federal changes to the Divorce Act. Changes include modernizing language around the terms custody and access, so they are consistent, clear and streamlined.
  • previously used terms such as “custody”, “decision making responsibility” and “access” will be replaced with more child-focused terms like “parenting time”, “parenting order”, and “contact order”3. allow parents and caregivers to obtain certified copies of child support notices from the online child support service so support amounts can be more easily managed or enforced outside the province.

Some other notable changes that will be implemented by Bill 207:

• a clear emphasis on the direction and promotion of alternative dispute resolution (ADR) methods to the settlement of family law matters (i.e. negotiation, mediation or collaborative law)
  • In order to achieve its objective of resolving cases in an easier, faster and more affordable manner, Bill 207 provides an active directive requiring both legal professionals and families to engage in ADR methods to achieve timely and more cost-effective resolutions of matters when appropriate
  • “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 Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law” Section 33.1(3)

• a wider definition of family violence
• the definition of “family violence” in the new legislation, means “any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct”
• a detailed list of various types of conduct that would fall within the new definition of family violence
• the act of violence “need not constitute a criminal offence” in order to fall within the definition of family violence in the Act and includes physical abuse, sexual abuse, threats to kill or cause bodily harm to a person, harassment including stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, threats to kill or harm an animal or damage property.
• a new rebuttable presumption of joint decision making
• Bill 207 creates a presumption that parties are equally entitled to decision-making responsibility with respect to the child unless otherwise provided for in the Act. This is new and a very significant change to previous legislation surrounding decision making

• providing a framework to deal with change in residence and relocation issues
  • The Bill creates a detailed framework for parties seeking to make a change in residence as well as a relocation, and it creates a rebuttable presumption that the parents with primary care of the child can move with the child
  • There is also a difference identified between a basic change in residence and a relocation which is defined to have a significant impact on another person with decision making responsibility, parenting or contact under a contact order

The provincial government’s news release in relation to Bill 207 can be found here: https://news.ontario.ca/en/release/58519/ontario-introduces-legislation-to-simplify-justice-system-for-families-and-protect-children

For information and assistance with respect to your family law matter, click here to book a consultation.