Regulations supporting Divorce Act amendments need clarity.
Words matter, the CBA’s Family Law Section says in a submission to Justice Canada regarding proposed regulations and guidelines in support of the amendments to the Divorce Act which come into effect on July 1.
For example, the proposed rewording of sections 8 and 9 of the Federal Child Support Guidelines, replacing the term “has custody” with “exercises the majority of parenting time” could create a host of unintended consequences.
“The new terminology of ‘exercises’ may lead to significant litigation and interpretive uncertainty,” the Section writes in its submission. It may require a parent to first prove whether they are exercising the parenting time set out in the court order. This may be impossible where the parenting order and child support order are being made concurrently and may impose an unintended requirement.”
The Section recommends retaining the term “has.”
While the Section heralds the changes to the Divorce Act regarding relocating parents, it cautions that “significant care is required so the forms used to communicate a relocating person’s plans will ensure that the legislative intent is met,” and that means using clear and concise language on the forms to make them easier for parents to use.
It recommends changes to the forms to reduce confusion about timelines and emphasize the importance of ensuring the intended person actually receives the form.
Wording also matters in areas where the federal law touches on matters of provincial jurisdiction to make clear when the federal Act applies. For example, Section 25.1 (1.2) of the amended Divorce Act says the calculation for deeming income is set out in the law of the province. That’s clear enough, but read in light of other sections of the Divorce Act, which says provincial laws apply unless they’re inconsistent with the Act, it can create ambiguity. The Section makes recommendations to clarify the legislative intent.