Bill C-78 received Royal Assent in June 2019 and came into force on March 1, 2021. It was the most significant reform to Canada's Divorce Act in over two decades. Four years later, there is now a substantial body of case law showing how courts have applied these amendments. This is not a preview of what might happen. It is an assessment of what has happened.
The Shift from "Custody" to "Parenting"
The most visible change was terminological. "Custody" became "decision-making responsibility." "Access" became "parenting time" or "contact." The intent was to move away from language that implied ownership of children and toward language that described parental functions.
Courts moved quickly to clarify what the new language does not do. In Knapp v. Knapp, 2021 ONCA 305, the Ontario Court of Appeal confirmed that the amended section 16(6) of the Divorce Act — which provides that "a child should have as much time with each spouse as is consistent with the best interests of the child" — does not create a presumption of equal parenting time. The parenting time factor is always subordinate to the best interests analysis, and arrangements must be determined on a child-by-child, family-by-family basis.
One of the more consequential practical changes is that decision-making responsibility can now be allocated by topic. In J.N. v. C.G., 2022 ONSC 1198, the parents disagreed about whether their children should receive the COVID-19 vaccine. The court granted the mother sole decision-making authority on that specific health matter, giving significant weight to the children's independently formulated views as verified by a social worker. This kind of topic-specific allocation — health, education, religion, extracurricular activities — was always theoretically possible, but the new statutory language makes it explicit and more common in practice.
Professor Nicholas Bala of Queen's University examined post-March 2021 judicial trends and found that shared parenting is now the most common arrangement where both parents had significant involvement before separation. But courts continue to reject equal parenting time where there is high conflict, family violence, alienating behaviour, or no pre-separation history of shared care. There is no legislative presumption of equal time.
Codified Best Interests Factors
Section 16(3) of the Divorce Act now sets out a mandatory list of best interests factors. Most of these factors were already applied by courts as a matter of common law, but codification has two practical effects. First, trial judges must now address each applicable factor on the record, reducing the risk of appellate reversal for an incomplete analysis. Second, the statute establishes a hierarchy: the "primary consideration" under section 16(2) is the child's physical, emotional, and psychological safety, and the parenting time factor in section 16(6) is expressly subordinate to it.
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In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada reinforced this hierarchy, holding at paragraphs 141-147 that family violence is "always a relevant and important factor" in the best interests analysis and can outweigh the parenting time factor. That decision resolved a tension in the pre-C-78 case law, where some courts treated the maximum contact principle as nearly presumptive.
Family Violence: Expanded Definition, Structured Analysis
The expanded definition of "family violence" in section 2(1) of the Divorce Act now explicitly encompasses coercive and controlling behaviour, financial abuse, psychological abuse, and threats. Section 16(4) sets out specific factors courts must consider when family violence is present, including the nature, seriousness, and frequency of the violence; whether there is a pattern of coercive and controlling behaviour; whether the violence was directed at the child or whether the child was directly or indirectly exposed; and the physical, emotional, and psychological harm to the child.
The most prominent case interpreting these provisions is Ahluwalia v. Ahluwalia. At trial (2022 ONSC 1303), Justice Mandhane recognized a novel tort of "family violence," using the section 2(1) definition as a starting point, and awarded $150,000 in compensatory, aggravated, and punitive damages for a pattern of physical assaults, emotional abuse, forced sexual activity, and financial control over a 16-year marriage. On appeal (2023 ONCA 476), the Ontario Court of Appeal declined to recognize the novel tort, holding that adequate remedies already existed through established torts such as assault, battery, and intentional infliction of mental distress. The Court found that the trial judge had erroneously relied on the Divorce Act's definition of family violence — which was "specifically conceived to address post-separation parenting plans" — as the basis for a new cause of action. The damages, however, were substantially upheld under existing tort law.
The practical takeaway is significant: the statutory definition shapes the best interests analysis even when it cannot ground a standalone tort claim. In Hatab v. Abuhatab, 2022 ONSC 1560, the court applied the full section 16(4) factors on an emergency motion — examining the nature, seriousness, and frequency of alleged verbal abuse, social isolation, and financial control. This structured analytical framework is precisely what pre-C-78 law lacked.
Screening Obligations
The Divorce Act now imposes statutory duties on legal advisers. Section 7.7 requires lawyers to encourage clients to attempt family dispute resolution processes where appropriate, but this obligation is qualified: lawyers need not encourage dispute resolution where family violence poses safety risks. The Supreme Court in Colucci v. Colucci, 2021 SCC 24 suggested that lawyers cannot competently comply with their statutory obligations unless they have assessed for family violence. Alberta has already implemented mandatory domestic violence screening as a procedural gateway before court-mandated ADR can proceed.
The Relocation Framework
Sections 16.9 through 16.93 of the Divorce Act establish a structured relocation framework that largely codifies and refines the Supreme Court's earlier Gordon v. Goertz framework. The most consequential feature is the three-tier burden of proof under section 16.93:
- Tier 1 — Substantially equal parenting time (approximately 40-50%): The relocating parent must prove the relocation is in the child's best interests.
- Tier 2 — Vast majority of time with the relocating parent (approximately 80% or more): The opposing parent must prove the relocation is not in the child's best interests.
- Tier 3 — All other cases: Both parties bear the burden.
In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court confirmed this framework and held that the moving parent's reasons for relocating are an express statutory consideration, and that family violence can justify relocation even where it limits the other parent's time. In Rinetti v. Kent, 2022 ABQB 1, the Alberta Court of Queen's Bench established that "vast majority" of parenting time should be set around the 80% threshold. And in Wu v. Yu, 2022 ONSC 3661, Justice Price conducted one of the first detailed judicial analyses of the full statutory framework — notice requirements, relocation-specific best interests factors, general best interests factors, and burden allocation — in granting a mother's request to relocate with a four-year-old child from London, Ontario to Burnaby, British Columbia.
Federal-Provincial Alignment
The Divorce Act applies uniformly across Canada, but provincial statutes govern unmarried parents and non-divorce proceedings. Whether a family encounters "parenting time" or "custody" depends on which statute applies. Ontario enacted Bill 207, the Moving Ontario Family Law Forward Act, which amended the Children's Law Reform Act to mirror the Divorce Act terminology, in force on the same date as the federal amendments. British Columbia's Family Law Act already used "parenting time" and "parenting responsibilities" before C-78. Not all provinces have caught up. Practitioners in those jurisdictions must use different terminology depending on whether they are proceeding under federal or provincial legislation, and court forms vary accordingly.
Impact on Practice
These amendments affect practitioner workflows in concrete ways. Court forms have been updated — Ontario's Form 35.1 now references "decision-making responsibility, parenting time, and contact" rather than "custody and access," and pleadings should be structured around the statutory factors in sections 16(3) and 16(4). The child support calculation threshold for shared parenting under section 9 of the Federal Child Support Guidelines remains at 40% of parenting time over the course of a year. The terminology has changed — the threshold is now described in terms of "parenting time" rather than "access" — but the mathematical threshold has not. Intake workflows need to accommodate family violence screening aligned with the section 2(1) definition, topic-specific decision-making responsibility (rather than the binary sole-custody/joint-custody framework), and relocation notice requirements under section 16.9.
At Divorcepath, these changes are reflected across our tools. Our support calculators use the current parenting time terminology and the 40% shared-parenting threshold. Our document preparation tools structure parenting proposals around the statutory best interests factors. And our intake workflows accommodate the granularity that the amended Divorce Act now demands — topic-specific decision-making, structured family violence screening, and relocation notice tracking. The statute has moved; the practice tools need to move with it.
