What an important step forward! For the first time in nearly 30 years, the Divorce Act has been significantly amended. As of March 1, 2021, there are new changes for spouses and families impacted by divorce. The modifications made to the Divorce Act aim to:

• promote the best interests of the child;
• fight against family violence;
• promote accessibility and efficiency of the Canadian justice system;

But what are these important changes?

A change in terms: no more “custody” or “access rights”!

The first important change is a change of terms. The wording used in the Divorce Act to describe parenting arrangements is now more child-focused.  The new Divorce Act replaces the terms “custody” and “access rights” by “parenting time”. The new terms are meant to reflect the reality that both parents can take care of their child, and reduces the war-like approach engaged by the idea of a “winner” and a “loser” in decisions about parenting arrangements.

This change in terminology is primarily intended to make parents conscious that a child is not an object to fight over. A child’s needs and interests must be at the center of all important decisions that affect him. This reality must be kept in mind in the context of a separation or a divorce.

Despite separation, a child can still thrive in a family when parents understand the importance of communicating respectfully and maintaining a good relationship when possible. The use of the terms “parenting time” and “parental decision-making responsibilities” should help parents focus their attention on their children even in the context of a divorce or separation.

The child’s best interest: What is it?

The Divorce Act also clarifies the notion of the child’s best interest. Before March 1,  2021, this concept was not always clear for the parents.  What is really in the best interest of the child? Each parent would have his own perspective based on his own set of values. Furthermore, Courts would interpret this concept in many different ways although certain guidelines existed in case law.

The Divorce Act now clearly sets out the factors that must be considered in evaluating the child’s best interest. The following factors are considered:

• child’s well-being and age-appropriate needs;
• The ability and willingness of each parent to meet the child’s needs;
• The parent’s ability to work together;
• The willingness of each parent to avoid involving the children in the parental conflict;
• The nature and strength of the child’s relationships with parents, grandparents, and other important people in their life,
• the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
• the child’s views and preferences;

Other factors are also considered. There is no one-size-fits all parenting arrangement. The courts are required to order parenting time based on the child’s best interest.

Beyond their parenting time, parents may also be assigned all or part of decision-making responsibilities regarding the child. Decision-making includes decisions related to the child’s health, education, culture, language, religion and spirituality, and extracurricular activities.

Addressing Family Violence

Because family violence in all forms has a significant impact on children’s well-being, the Divorce Act sets out rules to better include this reality when addressing issues related to parenting time and decisions that have an impact on children. In other words, any abusive behavior can impact the amount of time you spend with your child.

The Divorce Act now provides a very broad definition of family violence in order to include all forms of violence, including physical abuse, sexual abuse, harassment, psychological abuse, financial abuse, threats, etc. The new act defines family violence as any conduct that is:

• violent;
• threatening;
• a pattern of coercive and controlling behaviour;
• fear from a family member for his safety;
• directly or indirectly exposes a child to such conduct;

The courts now have to take family violence into account when they determine parenting arrangements. In fact, the court will assess the seriousness of the violence and determine how it could affect future parenting arrangements. The main objective is to protect children and families from the negative effects of family violence in the context of a divorce.  

Protection Against Illegal Removal

If you did not know it yet, any relocation with your child must be authorized by the other parent or by a court in case the parents do not agree. Having said that, sometimes it does not go as planned and a parent could decide to relocate with the child abroad without informing the other parent.

As of March 1, 2021, you must send a “Notice of relocation” to the other parent who has parental time with the child. When the relocation has a significant impact on the amount of time the other parent may have with the child, this notice must be sent 60 days before the anticipated move. You must include in the form, the expected date of the relocation and the new address.

The other parent who does not agree with the relocation will then have 30 days to send another notice called “Objection to Relocation Form” to the parent who intends to relocate.

The court will have to intervene to decide whether the relocation of the child is allowed when an objection is raised by the other parent. The reason for the relocation will be addressed by the court, as well as the significant and potential consequences to the child’s well-being as a result of the relocation.

With all these above-mentioned changes, one thing must be highlighted: the modified Divorce Act is an invitation to separating spouses to work together and resolve their divorce responsibly, with the best interests of the children in mind.

While the courts will be responsible for ensuring that the changes to the Divorce Act are implemented, it is important to remember that legal professionals should continue to encourage parties to resolve their disputes outside the courtroom, where possible. It is always recommended that parties attempt to resolve family disputes through family dispute resolution processes such as negotiation, mediation and collaborative law. The Jurinovo team promotes these methods of resolving family disputes when all the circumstances are met.

This article contains general legal information and does not constitute legal opinion. For legal advice concerning your personal situation, contact the Jurinovo team.