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The Divorce Act Changes Explained The Divorce Act Changes Explained Table of Contents Background 18 Definitions 19 Custody and custody order 19 (Section 2(1), Divorce Act) 19 Accès 20 (Section 2(1), Divorce Act) 20 Provincial Child Support Service 21 (Section 2(1), Divorce Act) 21 Corollary relief proceeding, divorce proceeding 22 (Section 2(1), Divorce Act) 22 Spouse 23 (Section 2(1), Divorce Act) 23 Spouse 24 (Section 2(1), Divorce Act) 24 Applicable guidelines 25 (Section 2(1), Divorce Act) 25 Competent authority 26 (Section 2(1), Divorce Act) 26 Contact order 27 (Section 2(1), Divorce Act) 27 Decision-making responsibility 28 (Section 2(1), Divorce Act) 28 Family dispute resolution process 29 (Section 2(1), Divorce Act) 29 Family justice services 30 (Section 2(1), Divorce Act) 30 Family member 31 (Section 2(1), Divorce Act) 31 1 June 3, 2020 Family violence 32 (Section 2(1), Divorce Act) 32 Legal adviser 35 (Section 2(1), Divorce Act) 35 Order assignee 36 (Section 2(1), Divorce Act) 36 Parenting order 37 (Section 2(1), Divorce Act) 37 Parenting time 38 (Section 2(1), Divorce Act) 38 Relocation 39 (Section 2(1), Divorce Act) 39 Jurisdiction 40 Two proceedings commenced on different days 40 (Sections 3(2), 4(2), 5(2) Divorce Act) 40 Two proceedings commenced on same day 43 (Sections 3(3), 4(3), 5(3) Divorce Act) 43 Transfer of proceeding if parenting order applied for 47 (Section 6(1) and (2) Divorce Act) 47 Jurisdiction – application for contact order 49 (Section 6.1(1), Divorce Act) 49 Jurisdiction — no pending variation proceeding 50 (Section 6.1(2), Divorce Act) 50 No jurisdiction – contact order 51 (Section 6.1(3), Divorce Act) 51 Removal or retention of child of marriage 52 (Section 6.2(1), Divorce Act) 52 Transfer 54 (Section 6.2(2), Divorce Act) 54 Federal Court 55 (Section 6.2(3), Divorce Act) 55 2 June 3, 2020 Child habitually resident outside Canada 56 (Section 6.3(1), Divorce Act) 56 Exceptional circumstances 57 (Section 6.3(2), Divorce Act) 57 Child habitually resident outside Canada 58 (Section 6.3(1), Divorce Act) 58 Duties – Parties to a proceeding 59 Best interests of the child 59 (Section 7.1, Divorce Act) 59 Protection of children from conflict 60 (Section 7.2, Divorce Act) 60 Family dispute resolution process 61 (Section 7.3, Divorce Act) 61 Complete, accurate and up-to-date information 62 (Section 7.4, Divorce Act) 62 Duty to comply with orders 63 (Section 7.5, Divorce Act) 63 Certification 64 (Section 7.6, Divorce Act) 64 Duties – Legal Adviser 65 Reconciliation 65 (Section 7.7(1), Divorce Act) 65 Duty to discuss and inform 67 (Section 7.7(2), Divorce Act) 67 Certification 69 (Section 7.7(3), Divorce Act) 69 Duties – Court 70 Purpose of section 70 (Section 7.8(1), Divorce Act) 70 Information regarding other orders or proceedings 71 (Section 7.8(2), Divorce Act) 71 3 June 3, 2020 Definition of civil protection order 73 (Section 7.8(3), Divorce Act) 73 Miscellaneous 75 Section 9 repealed 75 (Section 9, Divorce Act) 75 Definition of collusion 77 (Section 11(4), Divorce Act) 77 Heading “Interpretation” repealed 78 (Section 15, Divorce Act) 78 Best interests of the child 79 Best interests of the child 79 (Section 16(1), Divorce Act) 79 Primary consideration 82 (Section 16(2), Divorce Act) 82 Factors to be considered 83 (Section 16(3), Divorce Act) 83 Child’s needs 86 (Section 16(3)(a), Divorce Act) 86 Nature and strength of child’s relationships 87 (Section 16(3)(b), Divorce Act) 87 Supporting the child’s relationship with other spouse 88 (Section 16(3)(c), Divorce Act) 88 History of care 89 (Section 16(3)(d), Divorce Act) 89 Child’s views and preferences 90 (Section 16(3)(e), Divorce Act) 90 Child’s cultural, linguistic, religious and spiritual upbringing and heritage including Indigenous upbringing and heritage 91 (Section 16(3)(f), Divorce Act) 91 Plans for child’s care 92 (Section 16(3)(g), Divorce Act) 92 Ability and willingness 93 (Section 16(3)(h), Divorce Act) 93 4 June 3, 2020 Communicate and cooperate 94 (Section 16(3)(i), Divorce Act) 94 Family violence 95 (Section 16(3)(j), Divorce Act) 95 Civil or criminal proceedings 97 (Section 16(3)(k), Divorce Act) 97 Factors relating to family violence 98 (Section 16(4), Divorce Act) 98 Nature, seriousness and frequency 100 (Section 16(4)(a), Divorce Act) 100 Pattern of coercive and controlling behaviour 101 (Section 16(4)(b), Divorce Act) 101 Child’s experience of family violence 102 (Section 16(4)(c), Divorce Act) 102 Physical, emotional and psychological harm or risk of harm to the child 103 (Section 16(4)(d), Divorce Act) 103 Compromise to safety 104 (Section 16(4)(e), Divorce Act) 104 Fear for safety 105 (Section 16(4)(f), Divorce Act) 105 Steps to prevent further family violence by person engaging in family violence 106 (Section 16(4)(g), Divorce Act) 106 Other relevant factors 107 (Section 16(4)(h), Divorce Act) 107 Past conduct 108 (Section 16(5), Divorce Act) 108 Parenting time consistent with best interests of child 109 (Section 16(6), Divorce Act) 109 Parenting order and contact order 111 (Section 16(7), Divorce Act) 111 5 June 3, 2020 Parenting Orders 112 Parenting order 112 (Section 16.1(1), Divorce Act) 112 Interim order 114 (Section 16.1(2), Divorce Act) 114 Application by person other than spouse 115 (Section 16.1(3), Divorce Act) 115 Contents of parenting order 116 (Section 16.1(4), Divorce Act) 116 Terms and conditions 118 (Section 16.1(5), Divorce Act) 118 Family dispute resolution process 119 (Section 16.1(6), Divorce Act) 119 Relocation 120 (Section 16.1(7), Divorce Act) 120 Supervision 121 (Section 16.1(8), Divorce Act) 121 Prohibition on removal of child 122 (Section 16.1(9), Divorce Act) 122 Parenting time – schedule 123 (Section 16.2(1), Divorce Act) 123 Day-to-day decisions 124 (Section 16.2(2), Divorce Act) 124 Allocation of decision-making responsibility 125 (Section 16.3, Divorce Act) 125 Entitlement to information 126 (Section 16.4, Divorce Act) 126 Contact Orders 127 Contact order 127 (Section 16.5(1), Divorce Act) 127 Interim order 128 (Section 16.5(2), Divorce Act) 128 6 June 3, 2020 Leave of the court 129 (Section 16.5(3), Divorce Act) 129 Factors in determining whether to make order 130 (Section 16.5(4), Divorce Act) 130 Contents of contact order 131 (Section 16.5(5), Divorce Act) 131 Terms and conditions 132 (Section 16.5(6), Divorce Act) 132 Supervision 133 (Section 16.5(7), Divorce Act) 133 Prohibition on removal of child 134 (Section 16.5(8), Divorce Act) 134 Variation of parenting order 135 (Section 16.5(9), Divorce Act) 135 Parenting Plan 136 Parenting plan 136 (Section 16.6(1), Divorce Act) 136 Definition of parenting plan 137 (Section 16.6(2), Divorce Act) 137 Change in Place of Residence 138 Non-application 138 (Section 16.7, Divorce Act) 138 Notice 139 (Section 16.8(1), Divorce Act) 139 Form and content of notice 140 (Section 16.8(2), Divorce Act) 140 Exception 141 (Section 16.8(3), Divorce Act) 141 Application without notice 142 (Section 16.8(4), Divorce Act) 142 7 June 3, 2020 Relocation 143 Notice 143 (Section 16.9(1), Divorce Act) 143 Content of notice 145 (Section 16.9(2), Divorce Act 145 Exception 146 (Section 16.9(3), Divorce Act) 146 Application without notice 147 (Section 16.9(4), Divorce Act) 147 Relocation authorized 148 (Sections 16.91(1) and (2), Divorce Act) 148 Best interests of child – additional factors to be considered 150 Reasons for the relocation 150 (Section 16.92(1)(a), Divorce Act) 150 Impact of the relocation on the child 152 (Section 16.92(1)(b), Divorce Act) 152 Amount of time spent with the child 153 (Section 16.92(1)(c), Divorce Act) 153 Compliance with notice requirements 154 (Section 16.92(1)(d), Divorce Act) 154 Existence of an order, arbitral award or agreement specifying geographic area 155 (Section 16.92(1)(e), Divorce Act) 155 Reasonableness of proposal 156 (Section 16.92(1)(f), Divorce Act) 156 Compliance with obligations 157 (Section 16.92(1)(g), Divorce Act) 157 Factor not to be considered 158 (Section 16.92(2), Divorce Act) 158 Burden of proof – person who intends to relocate child 159 (Section 16.93(1), Divorce Act) 159 Burden of proof – person who objects to relocation 160 (Section 16.93(2), Divorce Act) 160 8 June 3, 2020 Burden of proof – other cases 161 (Section 16.93(3), Divorce Act) 161 (Section 16.94, Divorce Act) 162 Costs relating to exercise of parenting time 163 (Section 16.95, Divorce Act) 163 Notice – persons with contact 164 (Section 16.96(1), Divorce Act) 164 Notice – significant impact 165 (Section 16.96(2), Divorce Act) 165 Exception 166 (Section 16.96(3), Divorce Act) 166 Application without notice 167 (Section 16.96(4), Divorce Act) 167 Variation, rescission, suspension 168 Variation order 168 (Section 17(1), Divorce Act) 168 Leave of the court 170 (Section 17(2), Divorce Act) 170 Variation of parenting order 171 (Section 17(2.1), Divorce Act) 171 Variation of contact order 172 (Section 17(2.2), Divorce Act) 172 Conditions of order 173 (Section 17(3), Divorce Act) 173 Factors for parenting order or contact order 174 (Section 17(5), Divorce Act) 174 Variation order 175 (Section 17(5.1), Divorce Act) 175 Relocation – change in circumstances 176 (Section 17(5.2), Divorce Act) 176 Relocation prohibited – no change in circumstances 177 (Section 17(5.3), Divorce Act) 177 9 June 3, 2020 Priority to child support 178 (Section 17(6.6), Divorce Act) 178 Repeal section 17(9) 179 (Section 17(9), Divorce Act) 179 Copy of order 180 (Section 17(11), Divorce Act) 180 Interjurisdictional proceedings 181 Definitions 181 Competent authority 181 (Section 18, Divorce Act) 181 Designated authority 188
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