Canadian Lawyer

November 2020

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Page 34 of 43 33 another, even if they have primary residence of the children, says Couture. "But the Divorce Act has aligned a process wherein parents are able to make a move with the children," he says. "They have to provide certain notice, and if the other parent doesn't respond or doesn't contest it within the notice period, then they're able to move by default." As well, in considering children's best interests, to date, "our courts in Saskatchewan will not consider what a child's wishes are until they're at least 12 or 13 years old," he says. However, the amended Divorce Act makes a child's wishes a specific factor that is supposed to be considered. "Age is now a factor going to weight of how [the court considers] the child's wishes, rather than saying that they won't even consider them until 12." B.C.'s Family Law Act uses the term "guardianship" over "custody" and, in most cases, both parents will share guardianship, says Mennie. "Broadly speaking, most people will welcome these changes," he says. "Anything to make the process a little less adversarial will help the courts and probably children as well." Provincial legislation Amendments introduced to Saskatchewan's Family Maintenance Act late last year and now in effect throughout the province, says Couture, have created a recalculation service in agree- ment with the federal government. This will allow the province's Maintenance Enforcement Office to collect financial information, including banking information, aimed at better enforcement of child support payments. "The Divorce Act has authorized provin- cial governments to do that," he says, "and it allows for, effectively, a separate office that works with Maintenance Enforcement to recalculate the amount of child support that should be paid in a given situation, instead of just enforcing an amount that's directly in an agreement or an order. "They're able to, in very specific circum- stances . . . increase the amount or in some cases decrease the amount of support that was to be paid under an agreement or an order." In British Columbia the Provincial Court Family Rules are being overhauled to focus more on mediation and encouraging settle- ment in a managed process, "rather than simply fighting it out in front of a judge," says Mennie. New Brunswick had launched a consul- tation period with respect to changing its provincial Family Services Act to reflect the changes in the Divorce Act, says Boucher, before a writ of election was dropped. In September, a new government was sworn in, but "I assume" that consultation is still in the pipeline, she adds. Other provinces are likewise introducing legislation to bring their family laws into line with the amended Divorce Act. In late September, the Ontario government announced the introduction of its Moving Ontario Family Law Forward Act, 2020, intended to modernize language, simplify appeal routes and improve the online child support service. "If it's an original [child support] order brought when the child is independent, do the courts have jurisdiction? That's an open question, I think." Peter Mennie, Virgin Hickman LLP

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