On September 24, 2020, Ontario’s Lieutenant Governor introduced Bill 207, otherwise known as the Moving Ontario Family Law Forward Act.

When the federal government announced Bill C-78 in 2019 to make changes to the Divorce Act which are to come into effect on March 1, 2021, many believed it was only a matter of time before Ontario made  changes to provincial legislation to align with the federal changes.

How are the federal and provincial family laws related?

The Divorce Act applies to those who are married and seeking a divorce. When you are not married, the Divorce Act does not apply to you. Instead you will use the provincial/territorial law to resolve family disputes resulting from a separation.

Many of those who are married as well as those who are not use the provincial/territorial laws to resolve issues like parenting. It is also in the public’s best interest to ensure children of married individuals and children of unmarried individuals are treated the same under both legislations. For these reasons, it is important to ensure both the federal and the provincial/territorial family laws align.

The Ontario government advises that Bill 207 is intended to “make it easier, faster, and more affordable for individuals and families to resolve family legal matters”. Attorney General Doug Downey adds, “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.”

According to the Government of Ontario’s news release found here, the Moving Ontario Family Law Forward Act 2020 will do the following if passed:

  • Make the family law appeals process clearer and easier to navigate by clarifying when and how to appeal family law cases, help families reach final decisions faster in difficult cases, and make the appeals process more consistent no matter where their trial is heard.
  • 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, clearer and more streamlined.
  • 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.

Bill 207, also known as the Moving Ontario Family Law Forward Act 2020, will provide major changes to a number of elements of family law, including:

The definition of family violence

Family violence in the 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”.

Family violence includes:

(a)  physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b)  sexual abuse;

(c)  threats to kill or cause bodily harm to any person;

(d)  harassment, including stalking;

(e)  the failure to provide the necessaries of life;

(f)  psychological abuse;

(g)  financial abuse;

(h)  threats to kill or harm an animal or damage property; and

(i)  the killing or harming of an animal or the damaging of property.

Bill 207 clarifies that family violence “need not constitute a criminal offence” to be considered family violence. It also includes family violence a mandatory consideration when assessing the best interests of a child.

These changes suggest it was important to the legislature that Bill 207 include specific acknowledgement of family violence using up-to-date language to reflect our understanding of family violence in family law based on current research and statistics.

The presumption of equal decision-making responsibility

The previously used term, “custody”, is replaced with “decision-making responsibility” which means “responsibility for making significant decisions about a child’s well-being, including with respect to,

(a)  health,

(b)  education,

(c)  culture, language, religion and spirituality, and

(d)  significant extra-curricular activities;

The definition of a “significant decision” is not new. However, Bill 207 provides that a child’s parents are equally entitled to decision-making responsibility with respect to the child, unless otherwise provided for in this Act. This presumption is new. That said, courts do have the power to step away from this presumption and allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

Decision-making responsibility remains separate from parenting time and contact and there is no such presumption for parenting time and contact in Bill 207. The guiding principle continues to be “that a child should have as much time with each parent as is consistent with the best interests of the child”.

Addressing relocation issues

Whether one parent can relocate with a child has been one of the most litigated issues in family law. This is generally because there is rarely ever any middle ground for resolution. Relocation issues have been determined based on a 1996 Supreme Court decision called Gordon v Goertz. Bill 207 now provides a legislated framework for relocation issues:

  1. The parent who proposes to move must first give notice as prescribed in the Act. The other parent may object as prescribed in the Act.
  2. The parent who proposes to move may only do so if:
    • the court authorizes it, or
    • there is no objection to the relocation made and there is no order prohibiting the relocation.
  3. If an objection is made, and the parents are following a parenting schedule with substantially equal parenting time for each parent based on a separation agreement or court order, the moving parent has the onus to prove the move is in the child’s best interest.
  4. If an objection is made and the parents are following a parenting schedule with the vast majority of parenting time based on a separation agreement or court order, the party opposing the move has the onus to prove the move is not in the child’s best interest.
  5. If an objection is made and there is no separation agreement or court order, both parties have the onus to prove the best interests of the child.

Bill 207 creates a rebuttable presumption that a parent with the vast majority of time can move the child. Bill 207 also clarifies that “the relocation of a child constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances.”

Direction to resolve matters through negotiation, mediation, or collaborative law.

Family law encourages families and the professionals assisting families to use dispute resolution processes outside of court whenever possible. Bill 207 provides a stronger directive than its predecessor and requires that:

 “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.”

The use of the word “shall” in this section of Bill 207 creates a positive obligation that requires parties to try alternative dispute resolution processes, like mediation, unless it is inappropriate in the circumstances to do so. This requirement helps fulfill one of the objectives of Bill 207, as it provides parents and guardians of children an opportunity to spend more time making plans to support and care for the children and less time on paperwork and court appearances.

If you would like to review Bill 207 in detail, click here .

Where does Bill 207 go from here?

Bill 207 has passed First Reading in the legislature and is headed for Second Reading. If it passes Second Reading, there will be committee hearings where interested parties can express opinions and comments.

Stay tuned!

Disclaimer 

This blog is intended as general information and not legal advice.  Specific questions regarding your own circumstances should be addressed a family lawyer. 

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