WHY WAS THE DIVORCE ACT CHANGED?

In 2021, the Canadian government introduced significant changes to the federal Divorce Act.

But many do not know the reason for them and the history.

In this article, I will share the background and then let you know what the changes are.?

On April 22, 2015, in a herald call to the government to consider legislative change, Justice Benotto on behalf of the Ontario Court of Appeal wrote in M. v. F., 2015 ONCA 277 (CanLII):

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.?It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.”?It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.”

Four years later, on June 21, 2019, the Trudeau government passed Bill C-78 containing major changes to the?Divorce Act?pertaining to parenting rights and obligations.?The revisions to the?Divorce Act?came into force on March 1, 2021.?We just celebrated the one year anniversary of these changes.

Now for the purpose of the changes:?

Language: The objective of Bill C-78 amendments to the Divorce Act were to promote the best interests of the child between separating and divorcing parents by changing the nomenclature. The words “custody” and “access” were replaced with the more neutral words “parenting orders” and “contact orders”.?The term “parenting order” for parents replaces “custody order” and the term “contact order” sets out time for non-parents such as grandparents.? That is, the words “custody” and “access” are no longer.

Parenting plan:?Section 16.6(2) states “A parenting plan?means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.” Now parents need to enter into a detailed blueprint for the care of their children and that is called a Parenting Plan.?

No legal presumptions: The new?Divorce Act?removed the “maximum contact principle” cementing the idea that in family law there is no presumption of shared parenting and any parenting time must be determined based on only an analysis of the child's best interests. Section 16(6) now states “In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.” For some families, that could mean 50/50 for others a different time split.

Decision-making: The historical custodial parent right to make all decisions are replaced with new language of “decision-making responsibility” for a child which the court can allocate.?That is why Parenting Coordinators have become so popular.?Parents who cannot reach decisions on their own often use a Parenting Coordinator.

Relocation: The new?Divorce Act inserted into the legislation rules for relocation. ?For example, if the primary parent wants to move and the move?will not?have a significant impact on the child's relationship with the other parent, the primary parent must provide written notice of the date of the move and the intended new address. If the move?will have a significant impact on the child's relationship with the other parent, the moving parent must provide 60 days' notice in writing and follow the prescribed rules. If the left-behind parent objects to the move, he/she has 30 days to file an objection and follow the prescribed rules or lose the ability to block the move. ?

Family Violence: This?means any conduct, whether criminal or not, that is violent, threatening or part of a pattern of coercive and controlling behaviour is a factor to be considered in parenting orders.

Dispute Resolution: Lawyers must inform and encourage clients to participate in alternative dispute resolution including negotiation, mediation, mediation-arbitration, arbitration or collaborative law.??Judges even have the power to order parents to attend mediation.

These changes have been very well received by judges, lawyers, mediators and mental health professionals.?They have accomplished what Justive Benotto wrote about in 2015 – divorce should not create winners and losers when it comes to children. Parents need to focus on the best interests of their children and use all out-of-court resources available to resolve the details of a Parenting Plan.

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