Order Amending Order in Council P.C. 2019-1143 of August 7, 2019 by Replacing “July 1, 2020” with “March 1, 2021”: SI/2020-42
Canada Gazette, Part II, Volume 154, Number 12
SI/2020-42 June 10, 2020
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
Order Amending Order in Council P.C. 2019-1143 of August 7, 2019 by Replacing “July 1, 2020” with “March 1, 2021”
P.C. 2020-407 May 30, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 126(1) of 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, chapter 16 of the Statutes of Canada, 2019, amends Order in Council P.C. 2019-1143 of August 7, 2019 by replacing “July 1, 2020” with “March 1, 2021”.
(This note is not part of the Order.)
Pursuant to subsection 126(1) of 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, Order P.C. 2019-1143 dated August 7, 2019, fixed July 1, 2020, as the day on which subsections 1(1) to (4), (6) and (7), sections 2 to 6, 8 to 15, subsection 16(2), sections 17 to 19, 21, 22 and 23 to 25, subsection 28(3) and sections 32 to 35 of the Divorce Act, would come into force.
This Order amends Order P.C. 2019-1143 by fixing March 1, 2021, as the day on which the aforementioned sections and subsections will come into force.
The objective of the amendment to Order P.C. 2019-1143 is to fix a new date for the coming into force of amendments to the Divorce Act aimed at
- promoting the best interests of the child;
- addressing family violence;
- helping to reduce child poverty; and
- making Canada’s family justice system more accessible and efficient.
The delayed coming-into-force date of March 1, 2021, is necessary as the previously approved coming-into-force date of July 1, 2020, is no longer feasible due to delays caused by the COVID-19 pandemic.
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 strengthens and modernizes Canada’s family justice system, promotes access to justice and makes federal family laws more responsive to Canadian families’ needs.
The provisions of the Divorce Act that were scheduled to come into force on July 1, 2020, will now be brought into force on March 1, 2021:
- Subsections 1(1) to (4), (6) and (7) address definitions.
- Sections 2, 3, 4 and 5 address jurisdiction when proceedings are commenced on different days or on the same day.
- Section 6 addresses jurisdictional issues.
- Section 8 addresses duties of parties, legal advisers and the court.
- Section 9 repeals section 9 of the Act.
- Section 10 defines “collusion.”
- Section 11 repeals a heading.
- Section 12 introduces best interests of the child criteria, addresses parenting orders, contact orders, parenting plans, changes in place of residence, relocation.
- Section 13 addresses variation orders.
- Section 14 addresses proceedings between provinces and other jurisdictions to obtain, vary, rescind or suspend support orders, or to recognize decisions from other jurisdictions.
- Section 15 addresses the legal effect, enforcement, compliance and assignment of orders and decisions throughout Canada.
- Subsection 16(2) makes a change to subsection 20.1(2) of the French version of the Act.
- Section 17 repeals subsection 21.1(1) of the Act.
- Sections 18 and 19 address recognition of foreign divorces.
- Section 21 clarifies that the Canada Evidence Act applies to proceedings before the Federal Court.
- Section 22 addresses the means of presenting submissions in a proceeding.
- Section 23 is a consequential amendment.
- Sections 24 and 25 address provincial child support services for the calculation and recalculation of child support.
- Subsection 28(3) is a consequential amendment.
- Section 32 repeals section 33 of the Act.
- Section 33 addresses variation and enforcement of orders previously made.
- Section 34 deals with transitional provisions.
- Section 35 replaces “ordinarily” with “habitually” in the Act.
The COVID-19 pandemic has come at a critical time for the implementation of the Divorce Act amendments, and their planned implementation on July 1, 2020, is no longer feasible. As courts across the country are dealing primarily with urgent family law matters only, provincial/territorial rules committees are not able to finalize amendments to court rules and forms. Training of court staff and family justice staff and stakeholders is also challenging in this context, and will continue to be after the pandemic, as the courts deal with a backlog of cases. The pandemic has also made it challenging for the provinces and territories to complete the necessary regulatory process, which includes changes to Child Support Guidelines to align with the new Federal Guidelines and changes to court rules and forms.
At the federal level, Bill C-78 Divorce Act regulations were pre-published on March 21, 2020, but as a result of the pandemic, the final publication of the regulations will be delayed. These regulations must come into force at the same time as the legislation. The pandemic has also created delays for Justice Canada’s necessary public legal education and information (PLEI) and professional training on former Bill C-78. Professional training has been affected as many in-person sessions have been cancelled or postponed. The pandemic will also result in delays to the completion of print and web-based federal PLEI. The training and PLEI materials are essential to ensuring that family justice stakeholders are familiar with the former bill’s significant amendments to the Divorce Act.
By fixing a later coming-into-force date, this Order provides extended notice of the changes to the Divorce Act before they come into effect, and provides additional time for federal, provincial and territorial governments to make the necessary adjustments to the family justice system that are required in light of the changes to the Act.
The regulatory process for the regulations associated with the Divorce Act must be completed in advance of the amendments to the Divorce Act. Federal and provincial/territorial PLEI materials and training also require additional time to be developed and disseminated.
Deferring the fixed coming-into-force date to March 1, 2021, provides federal, provincial and territorial governments and the courts, as well as other stakeholders such as legal practitioners, law societies, legal information providers as well as the public, the time necessary to adapt to the changes and, if applicable, update their legislation, regulations or information to reflect the Divorce Act amendments. In addition, it will also ensure that family law litigants — many of whom are unrepresented and are already facing uncertainty about the impact of public health orders on current parenting orders and arrangements — do not face additional uncertainty and access to justice issues due to the lack of available PLEI.
There are no new costs associated with delaying the coming-into-force date.
The Department of Justice has consulted with provincial and territorial family law policy officials on their ability to undertake necessary changes required to implement the substantive amendments to the Divorce Act by July 1, 2020, and the fixing of the new date of March 1, 2021. The majority of provinces and territories indicated that they would not be able to implement necessary changes by July 1, 2020, and that a date in early spring 2021 would be preferable.
Family and Children’s Law and Policy Unit (Family, Children and Youth Section)