Divorce Act’s first changes in three decades spark major overhaul for DivorceMate Software

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For the first time in over 30 years, Canada’s Divorce Act is being given a comprehensive revamp, and that means big changes for DivorceMate Software as well. 

Approximately 30 Ontario court forms are impacted by the amendments to the Divorce Act, and this required the DivorceMate team’s full efforts to implement the changes in time for the March 1 effective date. In addition, the amendments meant big changes to DivorceMate’s Precedents software, specifically the separation agreements.

“Former Bill C-78 (now enacted) impacts many different aspects of family law and family law legislation, from the expanded delineation of the best interests of the child to the expanded definition of family violence to changes to the appeal routes for family cases, among other things,” says Christine Montgomery of DivorceMate. “Arguably, however, some of the biggest changes — that affect us and our clients — relate to parenting terminology changes, relocation, and alternate dispute resolution duties under the Divorce Act.”

Starting March 1, the conflict-inducing terms of “custody” and “access” have been replaced with the terms “decision-making responsibility” and “parenting time,” respectively. The hope, Montgomery notes, is that this terminology change will “take a lot of the animosity and conflict out of separation and divorce, because these new terms are not imbued with the same kind of winner/loser implications as custody/access; the negative connotations or stigma of not having ‘custody’ of the children is hopefully alleviated, and instead the focus can be on cooperative parenting where the best interests of the children are paramount.”

How effective the terminology change will be in “lowering the temperature” in these situations remains to be seen, but what is a certainty is that this amendment impacted Montgomery in her role updating DivorceMate’s separation agreements to include the decision-making responsibility and parenting time terms, which meant a serious overhaul to the parenting section of the agreement.

“We took everything apart — it was a little bit like doing open heart surgery,” Montgomery says. “Once we got into one area, we ended up having to change a lot of other impacted areas, and so it was not a simple swap of terminology but rather an entire revamp of all clauses and the structure of the parenting section in the agreement as a whole, as well as the related spousal support section.”

The agreement now provides sole, joint, and bifurcated options for decision-making responsibility for major decisions regarding the children, and expanded options for parenting time, including equal, shared, primary/secondary, split, supervised time, or in extreme cases, no time.

Relocation, or what used to be called “mobility” is another important amendment to the Divorce Act. Previously, relocation was determined by the common law with Gordon v. Goertz, a Supreme Court of Canada decision, setting out the interests to be considered. Now the legislature has codified not only the factors to be considered in determining the best interests of the child in a relocation, but it has also set out the procedure to be followed, providing a consistent process for a parent who wants to relocate, including specific notice provisions and timeframes. 

“That required some major revisions to our agreements to provide for that same process in the event that a party wants to relocate, with or without the child,” Montgomery says.

The new legislation also places an obligation on the lawyer to discuss and on the client to consider alternative dispute resolution processes including “negotiation, mediation, collaborative law — some of the more cooperative avenues open to the parties besides court,” Montgomery says, since a settlement that is negotiated between the parties is far more likely to be adhered to than a judgment that’s imposed on them.

“These expanded duties on the lawyer and parties required changes to many forms, and we finessed and improved the dispute resolution terms in our agreements.”

The many changes to the Divorce Act were not limited, however, to the federal realm. The province also undertook similar changes through Bill 207, the Moving Ontario Family Forward Act. Montgomery says it essentially mirrors the Divorce Act so that "married and unmarried parties will be handled the same way with respect to the children.”

The changes to the Divorce Act were given royal assent in the summer of 2019, but Ontario’s legislation didn’t receive royal assent until November 20, 2020 — leaving a little over three months before it all came into force. There’s no grace period, Montgomery notes, adding “because it’s a change in duties and terminology, it all has to happen concurrently.”

During times of sea change, it’s a definite timesaver for lawyers to have comprehensive software that automatically provides them with the most up-to-date tools and resources needed to seamlessly carry on with their important work, and Montgomery and the rest of the DivorceMate team worked tirelessly to incorporate all relevant changes by the March 1 deadline and have everything in place for their users.

“Not only do we have all of the new court forms they need now, but our clients can rest assured that our separation agreements have been amended to conform to the new law,” she says. “Ultimately, our goal is to make things easier for our clients, so that they in turn can focus their skills and expertise on their clients’ needs.”