Amendments to Canada’s Divorce Act: changes affecting custody orders

Canada implemented the Divorce Act in 1985.  The Act defines how various legal matters are dealt with upon the breakdown of a relationship between married spouses.  In addition to addressing the dissolution of a marriage, the Divorce Act deals with several corollary issues, including decisions around children and parenting. The existing legislation has recently been amended, with the majority of the amendments coming into force on July 1, 2020.  This blog post, will be one of series of posts wherein we will discuss some of the changes to the Act once the amendments take effect.

It is important to note that the Divorce Act is a Canada wide legislation that applies only to married spouses.  The Act does not apply to unmarried (or “common law”) spouses, who instead should look to provincial legislation including Ontario’s Family Law Act and Ontario’s Children’s Law Reform Act.

One of the major changes to the Divorce Act is with respect to how we deal with parenting of children on marriage breakdown.  Most people have heard the terms “custody” and “access”, which are legal terms defining how important decisions are made about children and how much time the children will spend with each parent.  The new Act removes these terms, which over the years have become the source of countless family court trials. Instead, the new Act refers to “Parenting Time”, which refers to the time a child spends with each parent and “Decision Making Responsibility”, which appears to replace the term “custody” and deals with the responsibility of making important decisions for children, including decisions about their health, education, religion, etc. 

The best interests of the child remain at the center of all Orders involving Parenting Time and Decision Making Responsibility; however, unlike the current legislation the new Divorce Act sets out a list of factors that are to be taken into consideration in assessing and determining the best interests of the child.  One significant change in the “best interests” test, is the inclusion of clarification around how family violence impacts the assessment of a child’s best interests in making a Parenting Order.

The amended Act maintains the principle known previously as the “maximum contact principle” which states that a child should have as much parenting time with each spouse as is consistent with their best interests.

It will be interesting to see how case law evolves with the implementation of the new Act , and specifically, if the changes to terminology result in a change to the types of Orders that are made around parenting issues.

Another major change to the legislation is the introduction of a specific process for dealing with a proposed relocation of a child outside of their home jurisdiction.  This topic will be addressed in more detail in the next blog in this series.

The above is only a very brief overview of the changes to Parenting Orders, and as with all legal matters, to have the best information about how the existing or new laws apply to your family situation, it is important that you consult with an experienced Family Lawyer.  Contact the office of Kay & McCourt today at (905) 372-1994 if you think we may be able to help you with your family law issue.

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