Guidelines Amending the Federal Child Support Guidelines: SOR/2020-247

Canada Gazette, Part II, Volume 154, Number 25

Registration

SOR/2020-247 November 23, 2020

DIVORCE ACT

P.C. 2020-905 November 20, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 26.1(1)^{footnote a} of the Divorce Act^{footnote b}, makes the annexed Guidelines Amending the Federal Child Support Guidelines.

Guidelines Amending the Federal Child Support Guidelines

Amendments

1 (1) The definition spouse in subsection 2(1) of the Federal Child Support Guidelines^{footnote 1} is repealed.

(2) The definition cessionnaire de la créance alimentaire in subsection 2(1) of the French version of the Guidelines is replaced by the following:

cessionnaire de la créance alimentaire: Le ministre, le député, le membre ou l’administration à qui la créance alimentaire octroyée par une ordonnance alimentaire a été cédée en vertu du paragraphe 20.1(1) de la Loi. (order assignee)

(3) Subsection 2(1) of the Guidelines is amended by adding the following in alphabetical order:

majority of parenting time: means a period of time that is more than 60% of parenting time over the course of a year. (majorité du temps parental)

(4) Paragraph 2(4)(a) of the Guidelines is replaced by the following:

(a) interim orders under subsections 15.1(2), 18.1(12) or 19(10) of the Act;

(5) Paragraphs 2(4)(c) and (d) of the Guidelines are replaced by the following:

(c) orders under subsections 18.1(15) or 19(13) of the Act;
(c.1) calculations of child support under subsection 25.01(1) of the Act; and
(d) recalculations of the amount of child support orders under subsection 25.1(1) of the Act.

(6) Paragraph 2(4)(c) of the Guidelines is replaced by the following:

(c) orders under subsections 18.1(15), 19(13), 28.5(5) or 29.1(5) of the Act;

(7) Subsection 2(5) of the Guidelines is replaced by the following:

Calculations and recalculations

(5) For greater certainty, the provisions of these Guidelines that confer a discretionary power on a court do not apply to calculations or recalculations by a provincial child support service under subsection 25.01(1) or 25.1(1) of the Act.

2 (1) Subparagraph 3(3)(a)(i) of the Guidelines is replaced by the following:

(i) the table for the province in which that spouse habitually resides at the time the application for the child support order or for a variation order in respect of the child support order is made,

(2) Subparagraphs 3(3)(a)(ii) and (iii) of the English version of the Guidelines are replaced by the following:

(ii) if the court is satisfied that the province in which that spouse habitually resides has changed since the time described in subparagraph (i), the table for the province in which the spouse habitually resides at the time of determining the amount of support, or
(iii) if the court is satisfied that, in the near future after determination of the amount of support, that spouse will habitually reside in a given province other than the province in which the spouse habitually resides at the time of that determination, the table for the given province;

(3) Paragraph 3(3)(b) of the Guidelines is replaced by the following:

(a.1) if the spouse who is subject to a calculation or recalculation under subsection 25.01(1) or 25.1(1) of the Act resides in Canada, the table for the province in which that spouse habitually resides at the time the amount of child support is to be calculated or recalculated under subsection 25.01(1) or 25.1(1) of the Act; and
(b) if the spouse against whom a child support order is sought, or who is subject to a calculation or a recalculation under subsection 25.01(1) or 25.1(1) of the Act, resides outside of Canada, or if the residence of that spouse is unknown, the table for the province where the other spouse habitually resides at the time the application for the child support order or for a variation order in respect of the child support order is made, or at the time the amount of child support is to be calculated or recalculated under subsection 25.01(1) or 25.1(1) of the Act.

3 Paragraph 7(1)(a) of the Guidelines is replaced by the following:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

4 Section 8 of the Guidelines is replaced by the following:

Split parenting time

8 If there are two or more children, and each spouse has the majority of parenting time with one or more of those children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

5 (1) The portion of section 9 of the Guidelines before paragraph (a) is replaced by the following:

Shared parenting time

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(2) Paragraph 9(b) of the Guidelines is replaced by the following:

(b) the increased costs of shared parenting time arrangements; and

6 Paragraph 10(2)(b) of the Guidelines is replaced by the following:

(b) the spouse has unusually high expenses in relation to exercising parenting time with a child;

7 Subsection 20(2) of the English version of the Guidelines is replaced by the following:

Non-resident taxed at higher rates

(2) If a spouse is a non-resident of Canada and resides in a country that has effective rates of income tax that are significantly higher than those applicable in the province in which the other spouse habitually resides, the spouse’s annual income is the amount that the court determines to be appropriate taking those rates into consideration.

8 Section 26 of the Guidelines is replaced by the following:

Provincial child support service

26 For the purposes of the recalculation of child support under subsection 25.1(1) of the Act, a spouse or an order assignee may appoint a provincial child support service to act on their behalf for the purposes of requesting and receiving income information under any of subsections 25(1) to (3), as well as for the purposes of an application under subsection 25(7).

Coming into Force

9 (1) Subject to subsection (2), these Guidelines come into force on the day on which section 24 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, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

(2) Subsection 1(6) of these Guidelines comes into force on the day on which section 30 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, comes into force, but if they are registered after that day, they come into force on the day on which these Guidelines are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Guidelines or the regulations.)

Executive summary

Issues: 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 (former Bill C-78) received royal assent on June 21, 2019. The date for the coming into force of most of the provisions in the Divorce Act was fixed by Order in Council as March 1, 2021.

In light of the changes to the Divorce Act, two existing regulations are amended and two new regulations are made. The changes will come into force on March 1, 2021.

Description: The Federal Child Support Guidelines are a set of rules and tables used to calculate child support in divorce cases. They use terms similar to those found in the Divorce Act, such as “custody” and “access.” Consequential amendments are made in the Guidelines Amending the Federal Child Support Guidelines to include new terminology from former Bill C-78, including terms such as “parenting time.”

The Central Registry of Divorce Proceedings (CRDP) detects duplicate divorce proceedings. When a duplicate divorce proceeding has not been detected, it sends a clearance certificate to a court. If there is no duplicate, a court may proceed to hear a divorce application. Changes are made to the Central Registry of Divorce Proceedings Regulations to include a provision defining the CRDP’s mandate; to specify that the information concerning each spouse be provided as of a specific point in time; and to comply with the Government of Canada’s policy to modernize its sex and gender information practices titled Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices.

New regulations entitled Provincial Child Support Service Regulations are established to include a number of rules for the calculation and recalculation of child support amounts under the Divorce Act. The new regulations include rules relating to the period within which one becomes liable to pay support, and appeal periods, as well as a method of calculation for provincial child support services to apply when deeming the income of a parent for recalculation purposes. The new regulations apply in the absence of provincial or territorial rules.

New regulations entitled Notice of Relocation Regulations are established in light of amendments to the Divorce Act that require the use of prescribed forms for the provision of information relating to certain types of moves. The regulations set out the required contents for three forms: Notice of Relocation, Notice of Objection to Relocation and Notice – Persons with Contact.

Rationale: The regulatory changes are made to

ensure consistent terminology and approaches among related statutory instruments and governmental policies;
prevent any legal void;
support and comply with the amendments to the Divorce Act; and
improve the efficiency of processes, including rules relating to the calculation and recalculation frame work under the Divorce Act.

Costs associated with the regulatory changes are expected to be low. The changes benefit Canadian families going through separation and divorce by increasing access to justice; the family justice system, by improving various processes; and the Government of Canada by increasing efficiencies.

Issues

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 (former Bill C-78) received royal assent on June 21, 2019. The date for the coming into force of most of the provisions in the Divorce Act was fixed by Order in Council (P.C. 2020-407) as March 1, 2021.

In light of the changes to the Divorce Act, two existing regulations are amended and two new regulations are made to reflect changes to the legislation.

1. Federal Child Support Guidelines (Federal Guidelines)

The current Federal Guidelines are no longer consistent with the amended Divorce Act, which could create confusion and ambiguity.

2. Central Registry of Divorce Proceedings Regulations

Currently, there is no explicit expression of a mandate for the Central Registry of Divorce Proceedings (CRDP) in the Central Registry of Divorce Proceedings Regulations (the CRDP Regulations). Because the CRDP’s role is not clear to the public, the CRDP frequently receives and must respond to requests that are beyond its mandate. Former Bill C-78 amended the Divorce Act to enable the Governor in Council to make regulations respecting the CRDP’s mandate.

Additionally, the current CRDP Regulations are not consistent with the Government of Canada’s Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices.

Finally, the CRDP Regulations currently refer to the collection of information concerning each of the spouses without reference to a specific and relevant point in time. The CRDP Regulations are updated to ensure that the information that is collected about the spouses involved in a divorce proceeding is accurate and relevant to the CRDP’s functions.

3. Provincial Child Support Service Regulations

The Divorce Act was amended to set out a framework for the calculation of initial child support amounts and to improve the existing framework related to the recalculation of child support amounts in divorce cases. The amended Divorce Act requires that a number of rules apply to calculation or recalculation. If specific provincial or territorial rules exist, the Divorce Act allows for those to apply. If no rules exist, or they exist but are inconsistent with the Divorce Act, the prescribed federal rules must apply. These federal rules are found in the Provincial Child Support Service Regulations.

4. Notice of Relocation Regulations

Relocation after divorce is a highly litigated area of family law. The Divorce Act has been amended to include new rules relating to moves, including requirements to provide notice in a prescribed form in cases of relocation. The prescribed forms are found in the Notice of Relocation Regulations. The use of prescribed forms is intended to improve clarity and promote the settlement of disputes outside the court.

Background

Family law in Canada is an area of shared jurisdiction between federal, provincial and territorial governments. The federal government is responsible for divorce (i.e. Divorce Act) and associated matters such as parenting (custody and access) and family support (i.e. child and spousal support) for divorcing or divorced couples.

Provincial and territorial governments are responsible for matters related to separating unmarried couples and married couples who separate but do not seek a divorce, as well as division of property issues related to separation and divorce. They are also responsible for the administration of justice. This includes the administration of the courts and the delivery of family justice services. Each province and territory has laws to address both the substance of family law, including matters such as parenting and support, and the procedure of family law, such as court rules.

Former Bill C-78, which received royal assent on June 21, 2019, amended the Divorce Act in order to, among other things,

replace terminology related to custody and access with terminology related to parenting responsibilities;
establish a non-exhaustive list of factors with respect to the best interests of the child;
create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
introduce measures to assist the courts in addressing family violence;
establish a framework for the relocation of a child; and
simplify certain processes, including those related to family support obligations.

Most of the amendments to the Divorce Act will come into force on March 1, 2021. In light of the changes to the Divorce Act, several regulatory changes are required.

Federal Child Support Guidelines

The Divorce Act allows the Governor in Council to establish guidelines respecting the making of rules for the determination of child support when married parents divorce. These rules are found in regulations called the Federal Child Support Guidelines (the Federal Guidelines). The Federal Guidelines, which were implemented in 1997, are a set of rules and tables to be used when calculating child support in divorce cases.

Provincial or territorial child support guidelines apply when married parents separate but do not divorce, or when the parents were never married to each other. Most provincial and territorial child support guidelines are exactly like, or very similar to, the Federal Guidelines. The Québec child support guidelines, however, use a different model.

The Federal Guidelines include terminology that is consistent with that found in the current Divorce Act.

Central Registry of Divorce Proceedings Regulations

The CRDP was established within the Department of Justice Canada through regulations made pursuant to the Divorce Act. The CRDP assists the courts in determining whether they have jurisdiction to hear a divorce proceeding under the Divorce Act by detecting duplicate divorce proceedings.

Canadian courts must register each divorce application they receive with the CRDP and inform the CRDP whenever a divorce is granted or a divorce proceeding is dismissed, discontinued or transferred to another court. The CRDP records this information in its database. The CRDP detects duplicate divorce proceedings by comparing newly registered information with existing data contained in its database.

The CRDP notifies courts when it identifies duplicate divorce proceedings for the parties to a divorce proceeding. It also sends a clearance certificate to the court when a duplicate divorce proceeding has not been detected. This clearance certificate allows the case to proceed.

Currently there is no explicit mandate for the CRDP set out in a statute or regulations. The CRDP Regulations merely describe the establishment of the CRDP and its operational activities such as maintaining a record of divorce proceedings, identifying duplicate divorce proceedings and notifying the courts. The CRDP’s role is not always clear to the public and consequently it receives requests that are beyond its mandate. For example, the CRDP frequently receives requests from the public for copies of divorce certificates or for clearance certificates. The CRDP must respond to all of these requests and explain that it cannot provide this information to the public.

According to the CRDP Regulations, the CRDP currently collects information concerning the sex of each of the divorcing spouses. The collection of this information by the CRDP is directly related to the CRDP’s operations and ability to detect duplicate divorce proceedings. This information helps to identify the parties and improves the accuracy of the duplicate divorce proceeding detection process. It also speeds up the duplicate identification process. The information collected may also be used to inform mandatory gender-based analysis of federal government activities and for policy development.

The federal government’s recent Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices, however, recommends that programs collect gender information by default (as opposed to sex information) and collect sex information only where biological information is required. It also recommends that a third gender option (“another gender”), be offered in addition to female and male, when requesting gender information.

The CRDP Regulations currently require the collection of information concerning each spouse’s surname at birth and information regarding their given names and sex without reference to a specific point in time. This is not always the most accurate or relevant information for detecting duplicate divorce proceedings.

Calculation and recalculation of child support by provincial child support services

Calculation

Under the current Divorce Act, the calculation of initial child support amounts can only be determined by courts and set out in child support orders.

Former Bill C-78 amended the Divorce Act to permit the administrative (or out-of-court) calculation of initial child support amounts by a provincial child support service in divorce cases, should a province or territory establish such a service and enter into an agreement with the Government of Canada. The agreement would allow the provincial child support service to calculate the initial child support amount in divorce cases, without the need to go to court. There are currently no agreements for such a service, but the Divorce Act amendments establish the legal framework should a province or territory implement a child support service for calculation purposes.

Once an agreement is in place, the provincial child support service’s role would be to calculate the initial child support amount based on the applicable guidelines. The child support amount would be set out in a child support decision, which would have legal effect throughout Canada. The child support decision could be registered, enforced and recalculated.

If either or both spouses disagree with the amount of child support calculated by a provincial child support service, the calculation framework permits either party to apply for an initial child support order under the Divorce Act.

Recalculation

Currently, the Divorce Act includes a framework for a provincial child support service to recalculate child support amounts that are set out in a court order made under the Divorce Act. An agreement between the province or territory and the Government of Canada is required to authorize provincial child support services to recalculate child support amounts in divorce cases.

The Government of Canada has entered into nine agreements with provinces and territories: Manitoba (July 2006), Prince Edward Island (August 2006), Newfoundland and Labrador (2002 and 2007), Alberta (December 2009), Québec (June 2014), Nova Scotia (October 2014), Yukon (June 2015), Ontario (April 2016) and Saskatchewan (July 2018).

The role of the provincial child support service is to recalculate child support amounts based on complete and accurate income information provided by parents. They recalculate based on the applicable child support guidelines. The Divorce Act also includes rules regarding disagreements with the recalculated amounts and the enforceability of the decision.

The amended Divorce Act includes several changes to improve the recalculation process. For example, it allows recalculation to be performed at regular intervals, or at the request of one or both former spouses. This provides greater flexibility to the provinces and territories in how their services are offered.

Another change to the Divorce Act allows the provincial child support service to “deem” income when financial information is not provided. The new approach ensures that the recalculation officer has a specific method to follow to deem income and that no discretion is used in the deeming process. The provinces and territories with which the Government of Canada has agreements to recalculate child support in divorce cases all have a method of calculating deemed income under their laws. If new agreements were to be signed with provinces and territories that do not have a method set out in their laws, the new regulations under the Divorce Act would apply.

The regulatory framework required to support calculation and recalculation changes in the Divorce Act is set out in the Provincial Child Support Service Regulations.

Notice of relocation

Former Bill C-78 amended the Divorce Act to address moves that happen after separation and divorce. When a parent is planning to move either with or without a child, and the move would have a significant impact on the child’s relationships, the move is considered a “relocation.” The amended Divorce Act requires that notice of a relocation be provided in a form prescribed by regulations.

A parent who is opposed to a proposed relocation of a child has the option of objecting by way of a form prescribed by regulations.

The amended Divorce Act also sets out notice requirements for anyone with an order for contact with a child who is planning a move. If the move would have a significant impact on their relationship with the child, the person must provide notice in a form prescribed by regulations.

The new Notice of Relocation Regulations set out the contents for the three required forms.

Objective

The objective of the regulatory amendments is to ensure that changes to the Divorce Act introduced in former Bill C-78 are reflected and/or set out in regulations. Ultimately, the regulatory changes are designed to ensure greater transparency, clarity, consistency, efficiency, and accountability in administrative matters related to divorce proceedings, child support calculation and recalculation, and relocation.

1. Guidelines Amending the Federal Child Support Guidelines

The changes are intended to ensure clarity, consistency and continuity between the Divorce Act and the existing Federal Guidelines.

2. Regulations Amending the Central Registry of Divorce Proceedings Regulations

The changes are intended to (i) provide clarity and transparency about the role of the CRDP and its activities; (ii) ensure that the CRDP Regulations are consistent with the Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices; and (iii) ensure that the CRDP collects accurate, appropriate and relevant information about divorcing spouses for the purposes of detecting duplicate divorce proceedings.

3. Provincial Child Support Service Regulations

The regulations are intended to ensure that consistent rules apply to the calculation and recalculation framework under the Divorce Act.

4. Notice of Relocation Regulations

The regulations are intended to provide certainty and transparency, which can promote the settlement of disputes outside of the court process, for parties to a divorce where a planned move would have an impact on a child.

Description

1. Guidelines Amending the Federal Child Support Guidelines

Several consequential amendments to the Federal Guidelines are made in light of changes to the Divorce Act.

Remove, replace and add definitions

Definitions in the Federal Guidelines that are already found in the Divorce Act are removed to avoid duplication or changed to ensure consistency.

A new definition of “majority of parenting time” is added. To have the majority of parenting time, a parent needs to have more than 60% of parenting time with a child in a year.

Refer to appropriate sections of the Divorce Act

Some provisions of the Federal Guidelines refer to sections of the Divorce Act that are repealed or changed by former Bill C-78. The Federal Guidelines are amended to refer to the appropriate sections of the Act.

Add the term “calculation”

Several provisions in the Federal Guidelines include the term “recalculation.” Because the amended Divorce Act includes a new mechanism for the initial calculation of child support in divorce cases, the Federal Guidelines provisions dealing with recalculation also need to refer to calculation. The same rules found in the Federal Guidelines for recalculation services apply to the initial calculation of child support, such as the rules relating to determining the applicable child support tables based on the province of residence of a parent.

Change in terminology

The Divorce Act will no longer use the terms “custody” and “access.” These terms, and related ones, are used in the Federal Guidelines and need to be changed to reflect the new terminology. The change in terminology is intended to support children’s best interests and reduce parental conflict by focusing on parents’ actual roles and responsibilities for caring for their children. The establishment of child support under the Federal Guidelines depends on the amount of parenting time a parent has with the child. Therefore, the Federal Guidelines are amended to include terms related to “parenting time”:

The term “custodial parent” is changed to “spouse with the majority of parenting time”;
“Split custody” is changed to “split parenting time”;
“Shared custody” is changed to “shared parenting time”; and
“Access” is changed to “parenting time.”

The Divorce Act will no longer use the term “ordinarily” reside. The amended jurisdictional rules are now based on whether a spouse is “habitually resident” in a province rather than whether they are “ordinarily resident” in a province. The new terminology is more consistent with international law and provincial and territorial laws. A few provisions of the Federal Guidelines currently use the term “ordinarily” reside. These are changed to “habitually” reside, in the English version only.

2. Regulations Amending the Central Registry of Divorce Proceedings Regulations

Mandate

The CRDP Regulations are amended to include a mandate that describes the CRDP’s role and activities.

Gender information

The amendments to the CRDP Regulations replace the word “sex” with the word “gender” to ensure consistency with the Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices. The CRDP Registration of Divorce Proceedings Form (CRDP Form) would also be revised to offer a third gender option (“another gender”), in accordance with the Policy Direction. A fourth option, titled “information not available,” will be offered in the gender section of the CRDP Form to address situations where the gender information is not provided in the court documents. This will ensure that the gender information that the CRDP uses to identify duplicate divorce applications is accurate and based on information provided by the parties in the court documents.

Point in time

Currently, the CRDP collects information concerning each spouse’s gender without reference to a specific point in time. The most relevant gender information for the CRDP’s purposes would be the party’s gender on the day before the marriage at issue, rather than their gender at birth or at the time of their divorce. By requesting the gender information as of the day before the marriage (which would be known to both of the parties), the CRDP will only collect the information that it requires to operate.

The CRDP also collects information concerning each spouse’s surname at birth and their given names without reference to a specific point in time. This can be problematic in cases where a party has been married more than once. In those cases, the most relevant name to identify duplicate divorce proceedings is the party’s name on the day before the marriage at issue, which would be known to both of the parties, rather than their name at birth.

The regulations are amended to specify that the CRDP collects information concerning each spouse’s surname, given names and gender “as of the day before the day of the marriage.”

3. Provincial Child Support Service Regulations

The substantive rules on how to determine child support amounts are found in the applicable child support guidelines. These rules are not changing.

Rules related to the process to calculate initial child support amounts and recalculate existing child support amounts in divorce cases are currently not established in federal regulations. The amended Divorce Act requires that rules be put in place concerning when a paying parent becomes liable to pay a child support amount and appeal periods. It also allows recalculation services to “deem” income based on a method of calculation. The periods and method of calculation can be those found in provincial or territorial legislation as long as they are not inconsistent with the Act. If the provincial or territorial legislation does not include these specific requirements, then, the federal rules would apply. New regulations are made to address situations where provincial law is silent.

Liability

In the absence of specific rules in provincial law, the regulations set out the period within which a spouse becomes liable to pay the initial child support amount or the recalculated amount determined by a provincial child support service. The period in the regulations is 31 days after the decision of the child support service.

Application to court

Similarly, in the absence of specific guidance in provincial law, the regulations set out the period within which an application to a court can be made in the event of a disagreement with the initial child support amount or the recalculated amount determined by a provincial child support service. This period is 30 days after the decision of the child support service.

Deeming income solely for recalculation purposes

In the absence of rules in provincial law, the Provincial Child Support Service Regulations include a method of calculation for provincial child support services to apply when deeming income for recalculation purposes. Specific percentages are set out in the regulations depending on the number of years during which the required income information has not been provided. This approach ensures that the recalculation officers have a specific method to follow to deem income.

4. Notice of Relocation Regulations

These regulations set out the required contents for three forms.

Form 1: Notice of Relocation

The amended Divorce Act requires that a parent who intends to undertake a relocation provide notice to anyone with parenting responsibilities or a contact order in relation to the child in the form prescribed by regulations. This form requires the following:

specified personal information;
information about the proposed relocation; and
a proposal as to how parenting time, decision-making responsibility and contact could be exercised if the relocation proceeds.

Form 2: Notice of Objection to Relocation

The amended Divorce Act states that a parent can object to a proposed relocation of a child by setting out their objection in a form prescribed by regulations. This form requires the following:

specified personal information;
reasons for the objection; and
comments on the proposal for the exercise of parenting time, decision-making responsibility or contact that is in the notice of relocation.

Form 3: Notice – Persons with Contact

The amended Divorce Act requires that a person with a contact order who is planning a change in their place of residence that is likely to have a significant impact on their relationship with the child gives notice to anyone with parenting responsibilities for the child in the form prescribed by regulations. This form requires the following:

specified personal information;
information about the change in residence; and
a proposal as to how contact could be exercised in light of the change in residence.

Regulatory development

Consultation

The Department of Justice Canada has consulted on changes to federal family laws with provincial and territorial family law officials who, as those responsible for the administration of justice and the delivery of family justice services, deal directly with families undergoing separation and divorce. The consultations occurred mainly with the Federal-Provincial-Territorial Coordinating Committee of Senior Officials-Family Justice (CCSO-Family Justice) and its subcommittees. Consultation on policy direction has also taken place with family law experts.

The Department of Justice Canada also conducts a survey of family law lawyers and judges every two years and is in regular contact with key stakeholders through various fora, and monitors stakeholders’ recommendations with respect to family law. Other federal departments that may be affected by the changes were consulted throughout the drafting process.

In addition, extensive consultations took place on the amendments to the Divorce Act through the parliamentary process. Family law stakeholders and experts, including the Canadian Bar Association, were consulted on the legislative amendments and some appeared before the House of Commons Standing Committee on Justice and Human Rights.

Provinces and territories are aware of the changes required and are ready for implementation of the changes to federal family laws.

Proposed regulatory changes were prepublished in the Canada Gazette, Part I, on March 21, 2020, for a 30-day consultation period. In addition, in light of the COVID-19 pandemic, the Department of Justice Canada advised through communications materials that comments would be accepted after this 30-day period. Submissions were received from individuals, lawyers and the Canadian Bar Association. Some of the comments received were outside the scope of the proposed regulatory changes. Other comments will be addressed through other means including through updated public legal education and information material. For example, comments were received on the Notice of Relocation Regulations asking for additional information in the regulations on what should be included in the relocation forms. This additional information will be found in plain language versions of the relocation forms, along with accompanying instructions, on the Department of Justice Canada website.

The following changes were made based on comments received and are reflected throughout this document:

1. Guidelines Amending the Federal Child Support Guidelines

In the proposed regulations, the concept of “exercising parenting time” was proposed for the wording that replaces the terms “custodial parent” in paragraph 7(1)(a) and “custody” in section 8 of the Federal Guidelines. Currently, these two sections of the Federal Guidelines refer to a parent “having” custody of a child or “being” the custodial parent of a child as opposed to “exercising” custody. Comments received indicated that the inclusion of the word “exercise” may have the effect of changing the current interpretation of these sections. Because the changes made to the Federal Guidelines are consequential only and the current rules remain the same, the term “exercise” is replaced by the term “has” in those two sections, to avoid an unintended change to the interpretation of these sections. This approach is also in line with the provincial child support regulations that currently include parenting language.

In addition, changes were made to subsection 2(4) to ensure that it refers to the correct sections of the amended Divorce Act.

2. Provincial Child Support Service Regulations

The header of section 4 of the regulations is amended to clarify that the method of calculation is for deeming income when such income is not provided for recalculation purposes.

Since most of the regulatory changes are administrative or consequential in nature, they are not expected to raise concerns with stakeholders, including parents going through separation and divorce.

Modern treaty obligations and Indigenous engagement and consultation

The amendments are technical in nature, flow from the amendments to the Act and will have no impact on modern treaty obligations. Consultations on these technical regulations are discussed above.

Instrument choice

Without the regulatory amendments and the new regulations, there would be a lack of consistency in terminology used in related statutory instruments; a lack of clarity about existing requirements; a lack of consistency in how child support is calculated and recalculated; and a lack of certainty in relation to relocations in divorce cases. Furthermore, without the regulatory amendments and new regulations, there would be voids in the legal framework as there would be no regulations to prescribe rules and forms as established in the Divorce Act. Therefore, no non-regulatory options were considered.

Regulatory analysis

Benefits and costs

Provinces and territories may need to adjust their laws, regulations and forms to adapt to the changes contained in the amended and new regulations. Similarly, courts will also need to make changes to their rules based on the regulatory amendments. There may be some minor costs associated with these changes. Proceedings started under the old Divorce Act, but not completed until after March 1, 2021, will be governed by the amended Divorce Act. As a result, a best practice would be for family law litigants and lawyers to start making submissions under the new Act and associated regulations in advance of that date. This would help avoid any additional delays or costs associated with updating their submissions after March 1, 2021.

1. Guidelines Amending the Federal Child Support Guidelines

The changes to the Federal Guidelines are consequential and do not introduce new costs. These changes are expected to ensure clarity and reduce ambiguity about terminology used in related statutory instruments.

2. Regulations Amending the Central Registry of Divorce Proceedings Regulations

Under the current regulations, court clerks have to complete the CRDP Form using the information contained in the court file. Under the regulatory amendments, they will continue to collect the information about each party’s surname, given names and gender, but this information will need to be provided as of a specific point in time. This regulatory change will not increase the requirements on the court clerks to complete the CRDP Form. Similarly, there will be no increase in the burden on individuals to provide information, as they will continue to be asked to provide their given names, surname and gender. The only difference is that they will provide this information as of a specific point in time.

Provincial and territorial court forms required as part of a divorce application may need to be changed to ensure that the information required for the new CRDP Form is accurately collected and is available in the court file. The cost will be minimal, as provinces and territories will likely have to amend their court forms in light of the Divorce Act amendments in former Bill C-78. The cost, if any, of including a request for each party’s given name, surname, and gender as of the day before the marriage should be nominal.

Justice Canada will develop a special communiqué; update the CRDP forms, manuals, and training materials; and offer training sessions to each jurisdiction to assist the courts in implementing these changes. Costs to Justice Canada for such activities will be minimal and will be managed within existing resources. Changes to the CRDP system will be made as part of a planned system update on March 1, 2021.

The Government of Canada and the public will benefit from the changes, as they will improve the operational functioning of the CRDP by ensuring that the CRDP receives the most relevant and accurate information about the spouses to detect duplicate divorce proceedings. Obtaining more accurate information may improve the system’s ability to detect duplicate divorce proceedings. In addition, by clarifying the CRDP’s role and activities, the regulatory changes will improve the CRDP’s efficiency by reducing the time that it spends responding to requests that are beyond its mandate.

3. Provincial Child Support Service Regulations

The Divorce Act amendments in former Bill C-78 require that rules related to the process for calculating and recalculating child support amounts be set out in regulations and apply if provincial law is silent.

No new costs are anticipated for provincial child support calculation or recalculation services. The substantive rules on how to determine child support amounts are found in the applicable child support guidelines, which are not changing. Judges also use the applicable child support guidelines when determining child support amounts.

For a recalculation service to determine an updated child support amount, it requires updated income information from the paying parent. Sometimes, however, paying parents do not disclose their updated income, and currently under the Divorce Act, a recalculation service cannot deem what their income should be considered to be. This means that many of these cases that could otherwise be recalculated must go back to court, which increases costs both to the family justice system and families.

As of March 1, 2021, the Divorce Act will allow child support services to deem a paying parent’s income for recalculation purposes if income information is not provided to the service. The new regulations set out a standard method of calculation to deem income based on percentages. The percentages will be added to the last income used to determine the child support amount, and will increase depending on the number of years that have passed since the last child support order was made. Specifically, the amount will increase by 10% if less than two years have passed; 15% if two years or more; 20% if five years or more; and 30% if 10 years or more. The percentages set out in the new regulations are the same as those currently found in three provinces (Manitoba, Ontario and Saskatchewan). They are also broadly consistent with the percentages set out in the other provinces and territories. This means that more families will be able to have child support amounts updated in divorce cases without having to go to court.

The prescribed method to deem income for recalculation purposes set out in the regulations will allow more child support cases to be recalculated by child support services, meaning that parents will not have to go to court. It will also help recalculation services determine fair child support amounts that better reflect parents’ income for child support purposes.

The changes to the Divorce Act include a transitional provision that provides that existing agreements with provinces for recalculation of child support amounts will continue to be in force. As a result, the existing agreements will continue to be in force until they are changed. New agreements would be required if a province or territory chose to change their service to reflect the new provisions of the Divorce Act.

Former Bill C-78 amended the Divorce Act to create a framework for the initial calculation of child support by a provincial child support service for cases in which there is not already an order for child support under the Divorce Act, should a province establish such a service. As is the case for recalculation, for a provincial child support service to calculate child support under the Divorce Act, an agreement would be required between the province and the federal government, and the child support service would need to follow the rules found in the Act. This new framework would allow for an out-of-court process for divorce cases, should the province enter into an agreement with the federal government. This means that families would be able to have child support amounts calculated in divorce cases without having to go to court.

4. Notice of Relocation Regulations

The use of prescribed forms is required under the Divorce Act; therefore, costs related to the use of the forms flow from the requirements in the Act, not the proposed regulations.

In addition to the information requirements established under the Divorce Act, the regulations prescribe limited additional information that must be included in the forms, specifically the name and address of the person completing the form; the names of any children involved; and the names of the people receiving the form. Providing this additional prescribed information should not result in any financial costs. The only cost incurred would be minimal time spent completing the forms.

Requiring that notice of a move be provided through the use of a prescribed form will help to ensure that parents and people with contact orders provide all necessary information when proposing to relocate with a child or to undertake a move that would have a significant impact on the child. This, in turn, can help to promote agreement among parties, thus avoiding the possible cost and delay of going to court to settle disputes.

Allowing the option of objecting to a proposed relocation of a child through a prescribed form, rather than a court application, also promotes more timely and cost-effective settlement of issues. In addition, having all necessary information relating to an objection to a proposed relocation set out in the form improves clarity and transparency, thus supporting resolution of disputes.

Finally, facilitating the settlement of disputes helps to reduce parental conflict. Exposure to parental conflict can be harmful to children, and thus reducing conflict is in the best interests of the child.

Small business lens

Analysis under the small business lens determined that the regulatory changes will not impact small businesses in Canada.

One-for-one rule

Although the regulatory changes introduce two new regulatory titles, the one-for-one rule does not apply, as there is no incremental change in administrative burden on businesses.

Regulatory cooperation and alignment

The regulatory changes are aligned with the policies and laws of the provinces and territories. For example, the new Provincial Child Support Service Regulations include prescribed periods and a method of calculation to deem income that are similar to provincial and territorial approaches, and which only apply if there are no provincial or territorial rules in place in a jurisdiction.

The regulatory changes will benefit the provincial and territorial child support services by giving them more flexibility to calculate or recalculate child support amounts, without parents having to go to court. The changes will also help recalculation services determine fair child support amounts that better reflect parents’ income for child support purposes.

Strategic environmental assessment

The assessment has determined that the regulatory changes are not expected to result in any environmental impacts.

Gender-based analysis plus (GBA+)

1. Guidelines Amending the Federal Child Support Guidelines

The amendments to the Federal Guidelines are technical and consequential and, therefore, are not expected to have differential impacts on the basis of identity factors including, but not limited to gender, ethnicity, face, sexuality, religion, age, or income level.

2. Regulations Amending the Central Registry of Divorce Proceedings Regulations

The amendments to the CRDP Regulations will require that divorcing spouses indicate their gender rather than their sex. This amendment will help ensure consistency with the Government’s Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices, which recommends that gender information be collected by default and that sex information only be collected for programs or services where biological information is required. In accordance with the Policy Direction, the CRDP’s Registration of Divorce Proceedings Form would also be revised to offer a third gender option (“another gender”). A fourth option, “information not available,” will be offered in the gender section of the Registration of Divorce Proceedings Form to address situations where the gender information is not provided in the court documents. This will ensure that the gender information that the CRDP uses to identify duplicate divorce applications is accurate and based on information provided by the parties in the court documents. It will also ensure that the CRDP obtains accurate gender information to inform mandatory gender-based analysis of federal government activities and for policy development.

3. Provincial Child Support Services Regulations

The Provincial Child Support Services Regulations support the Government of Canada’s commitment to facilitating access to justice for Canadians. Provincial child support services offer parents — regardless of gender and socio-economic status — a faster, less costly and less adversarial way to calculate and update child support amounts.

The Provincial Child Support Services Regulations are gender neutral and seek to ensure that child support amounts reflect parents’ capacity to pay. The amendments to the Divorce Act relating to provincial child support services may affect men and women differently. For example, allowing recalculation to be performed at the request of either or both spouses rather than only at “regular intervals” will ensure that child support amounts are based on paying parent’s — who are generally men — most recent income information. For example, a paying parent could request that child support be recalculated if they lost their job after child support has been determined. Ensuring that child support amounts continue to accurately reflect parents’ capacity to pay also reduces the likelihood that paying parents default on their legal obligation and face consequences such as garnishment of their wages or licence suspension. Moreover, where paying parents neglect or refuse to disclose income information for recalculation purposes, amendments to the Divorce Act provide rules allowing provincial child support services to deem income. This is an invaluable tool for support recipients — who are generally women — to seek to have child support recalculated in a less adversarial manner.

The new administrative child support calculation framework and improvements to the existing recalculation framework will have a tangible impact on children who will benefit from their parents being able to determine child support amounts in a more timely and amicable manner.

4. Notice of Relocation Regulations

The Notice of Relocation Regulations will improve access to justice for all parties affected by a move, and particularly for parents with limited financial resources. Case law demonstrates that women bring the vast majority of applications for relocation of a child. Therefore, it is likely that women will most often be the ones providing notice of relocation, and men will most often be the ones objecting. However, all parties can save time and money by settling disputes outside of the court.

During House of Commons Committee hearings on the Divorce Act amendments, it was noted by a legal group from Nunavut that only allowing an objection to a proposed relocation by way of court application would create access to justice issues given the limited access to courts in Northern and remote communities. Therefore, the option of objecting by way of prescribed form supports access to justice for parents in these communities.

Rationale

Regulatory amendments and new regulations are needed to support the implementation of, and ensure consistency with, changes to the Divorce Act introduced through former Bill C-78.

Failure to amend the Federal Guidelines would likely result in confusion for parents and family justice professionals, as there would be inconsistent terminology between the Divorce Act and the regulations.

Failure to amend the CRDP Regulations would result in the regulations being inconsistent with the Government’s Policy Direction. In addition, the lack of clarity regarding the CRDP’s role would persist and the CRDP would continue to receive requests that are beyond its mandate. Without regulatory changes, it is also more likely that duplicate divorce proceedings would not be detected where the parties have provided information as of different points in time.

Failure to introduce the Provincial Child Support Service Regulations would likely result in significant confusion, as the Divorce Act requires that regulations set out, in the absence of guidance under provincial law when a parent becomes liable to pay the calculated or recalculated child support amount; the period within which a parent can appeal a decision from a provincial child support service; and a method of calculation to deem income.

Failure to introduce Notice of Relocation Regulations would likely result in significant confusion, as the Divorce Act requires the use of prescribed forms in certain instances. This confusion could result in delays in providing and responding to required notices, along with provision of incomplete information. In addition, people may be more likely to seek a court decision about a proposed move, thus further increasing delays and increasing costs for affected parties and for the family justice system.

Implementation, compliance and enforcement, and service standards

The regulatory amendments and new regulations will come into force on March 1, 2021, at the same time as the amendments to the Divorce Act. The Department of Justice Canada will incur small costs to update and produce various public legal education and information products. These costs will be managed within existing resources.

Collaboration is ongoing with the provinces and territories to ensure an effective and efficient implementation. In addition, collaboration is also taking place with federal departments that may be affected by the changes, including Finance Canada and the Canada Revenue Agency. These departments are aware of the changes and the Department of Justice Canada will offer training to federal officials on the legislative and regulatory changes.

Calculation and recalculation services are established and governed by provinces and territories. They are responsible for setting their own service delivery standards related to their activities.

The family justice system and stakeholders, including parents going through divorce, need to be made aware of the changes as soon as possible to ensure a smooth transition to the new approach, which is set to begin upon the coming into force of the changes to the Divorce Act on March 1, 2021.

Contact

Claire Farid
Director and General Counsel
Family and Children’s Law Team
Family Law and Youth Justice Policy Section
Department of Justice
Telephone: 613‑957‑2788