When Canada updated its Divorce Act in 2021, there was a lot of talk about how it would modernize family law and better protect children and victims of domestic abuse. And sure, the Divorce Act Amendments made some changes—like shifting the language from “custody” and “access” to “decision-making responsibility” and “parenting time.” But let’s be honest: vocabulary changes don’t fix the deeper issues. Family lawyers, parents, and advocacy groups have pointed out major gaps in the new system, and for good reason.
1. The 40% Rule is Still a Problem After The Divorce Act Amendments
One of the most criticized aspects of the Divorce Act is the so-called “40% rule” in child support calculations. Under the Federal Child Support Guidelines, if a parent has at least 40% parenting time, they may qualify for reduced child support payments. Sounds reasonable, right? In practice, though, it creates all sorts of perverse incentives.
Let’s say a parent is close to that 40% threshold. Instead of focusing on what’s best for the child, they might push for more time to lower their financial obligations. That’s not hypothetical—it happens. A 2021 report by Lerners LLP pointed out that courts have seen cases where parents suddenly fight for more days with their kids, not because they genuinely want more parenting time but because they don’t want to pay as much in support. This kind of financial jockeying can lead to unnecessary custody battles, increasing conflict between co-parents instead of reducing it.
2. Family Violence Protections Are Inconsistent
One of the more positive aspects of the amendments was the explicit recognition of family violence, including coercive control, as a factor in custody decisions. In theory, this means that judges are supposed to consider things like emotional abuse and financial manipulation when deciding parenting arrangements. The problem? Implementation is all over the place.
Judges aren’t social workers, and family courts are already overwhelmed. Without proper training and clear guidelines, these provisions risk being inconsistently applied. A University of Calgary legal analysis found that while the new rules are a step forward, they still rely too much on individual judges’ discretion. That means outcomes can vary widely depending on your court and how well the lawyers present the evidence. The new Divorce Act Amendments don’t address that.
Plus, proving coercive control isn’t straightforward. Unlike physical abuse, which can be documented with medical records or police reports, emotional and financial abuse can be harder to quantify. Survivors often struggle to provide the “evidence” needed to sway a judge, especially in cases where the abuser has manipulated financial records or social dynamics to appear as the more “stable” parent.
3. The Push for Alternative Dispute Resolution (ADR) Isn’t a Game-Changer
The Divorce Act Amendments also emphasize using Alternative Dispute Resolution (ADR)—things like mediation and collaborative law—to resolve conflicts without going to court. That sounds great in theory. It’s not some revolutionary change; courts have been pushing ADR for years.
Mediation can work well in low-conflict divorces where both parties are willing to negotiate in good faith. But in cases involving power imbalances—like when one spouse has significantly more financial resources or when there’s a history of domestic abuse—mediation can do more harm than good. A 2022 study by the National Association of Women and the Law (NAWL) found that survivors of domestic abuse often feel pressured into unfair settlements in mediation, especially if they lack legal representation.
4. No Real Fix for Enforcement Issues (Divorce Act Amendments)
Winning a court order is one thing; getting it enforced is another. A recurring issue in family law is what happens when one parent refuses to follow court orders. Whether it’s withholding child support or ignoring parenting schedules, the new Divorce Act amendments do little to address enforcement in a meaningful way.
Sure, non-compliance penalties exist, but enforcement mechanisms are still largely left to the provinces. Some jurisdictions have stronger systems than others. You might get results if you live in a province with proactive enforcement agencies. If not, good luck. This leads to wildly inconsistent experiences for parents trying to ensure that their ex follows through on their obligations.
5. Economic Hardships of Divorce Still Overlooked
Divorce is expensive. For many families, legal fees alone can be financially devastating. The new Divorce Act Amendments don’t address the economic realities of divorce in a meaningful way.
One major issue? The cost of legal representation. The Canadian Bar Association has repeatedly pointed out that access to justice remains a huge problem. Mediation and ADR might reduce costs for some, but if your case is contentious, you’re still looking at thousands (or even tens of thousands) in legal fees. For lower-income families, that’s a non-starter. And while legal aid exists, it’s notoriously underfunded, meaning many people either represent themselves (often to their detriment) or settle for less than they deserve to avoid legal costs.
Where Do We Go From Here?
The Divorce Act Amendments were a step in the right direction, but they didn’t go far enough. Here’s what needs to happen next:
- Fix the 40% rule: Child support calculations should be based on actual financial need, not an arbitrary percentage of parenting time.
- Standardized training for judges on family violence: Courts will continue to handle these cases inconsistently without a clear framework.
- Better enforcement mechanisms: Court orders are useless if they aren’t enforced. We need a nationwide strategy to ensure compliance.
- More affordable legal options: Divorce shouldn’t be financially ruinous. Increased legal aid funding and more accessible representation options would help level the playing field.
Final Thoughts on the Divorce Act Amendments
Divorce isn’t just a legal process—it’s a life-altering event for families. The 2021 Divorce Act Amendments were supposed to make the system fairer and more functional. Instead, they left some of the biggest issues untouched. Until policymakers tackle these deeper problems, Canadian families will continue to struggle with a system that feels more like an uphill battle than a path to resolution.
Author: Samantha Greer
Bio: Samantha Greer is a family law analyst with a background in legal advocacy, specializing in divorce reform and child custody legislation.
