Upcoming Changes to the Divorce Act and their Impact on Custody and Access

When thinking of the important aspects of a divorce where children are involved, a person’s mind typically turns to custody and access. These rights are addressed in the Divorce Act. On June 21, 2019 Bill C-78 received Royal Assent. Among other changes, this Bill has revamped custody and access, and most of the changes will come into force on July 1, 2020.

Previously, the wording of the Act was very parent centric. Under the previous version, the Act defined the term “custody” as the care, upbringing, and any other incident of custody of the child. This wording has been confusing to Family Law clients for some time, as many people did not realize that custody in fact meant only decision-making. The term “custody” evoked negative feelings, and the terms custody and access often left parties feeling as though there was a “winner” and a “loser” in the Court proceeding. Following the enactment of Bill C-78, the term custody is repealed.

The legislation now uses child-focused language instead of parent-focused language. The Courts have always focused on the best interests of the child and the new amendments emphasize a parent’s relationship with their children by using such terms as parenting time and decision-making. The term “custody order” has been replaced with the term “parenting order”, and the term “access” has been entirely removed from the new Act.

Whereas the term custody previously meant a parent’s decision-making responsibility, that definition was never clearly stated in the Act. Now, the Act specifically addresses “decision-making responsibility” and defines the term as the responsibility for making significant decisions about a child’s wellbeing, including with respect to the child’s health, education, culture, language, religion, spirituality, extra-curricular activities, etc. This new wording now clearly assigns a parent’s responsibility for making significant decisions about a child’s life. Further, the new Act clearly delineates “parenting time”, which is defined as the time the child spends in the care of either spouse, during which period the parent (or any other individual who is granted contact) is responsible for the child’s wellbeing and care.

As you can see, this new wording focuses on the child’s relationship with their parents and their right to spend time with their parents, which underscores the Court’s focus on the best interests of the child.

Bill C-78 has taken a serious look at the present Family Law landscape and has modernized the language of the Act to be more child-focused. At all times, the focus of the Family Law Courts is on the best interest of the child and the wording of the Divorce Act will now reflect that maxim. In fact, there is even a new section titled “Protection of children from conflict”, which mandates that parties to a proceeding under the Divorce Act shall strive to protect their children from conflict arising out of the court proceeding. The Court has observed that children are often significantly impacted by their parents’ divorce, and the conflict witnessed by children has been proven to be detrimental to their mental health and wellbeing.

Though the Courts have always focused solely on the best interests of the child, the amended Divorce Act now makes that principle very clear. Section 16 of the Act is now replaced by a section titled “Best Interests of the Child”, which mandates that the Court shall take into consideration only the best interests of the child in making a parenting order or contact order.

The amendments to the Divorce Act will not affect parties’ rights as parents. The reason for these changes is to place an added emphasis on the best interests of the child and to focus on the relationships between children and their parents. The new terminology is focused on parents’ responsibilities for their children, and their duty to exercise these responsibilities in a manner consistent with the best interests of the child. Additionally, part of the objective is that these changes in terminology will help to reduce parental conflict.

The legislation will now reflect what the Courts have long since known; each child is different, and every family is different. A solution which may work for one family could fail for another. There should be no presumptions in terms of parenting arrangements for children in Family Law, and the focus should always be on the best interests of the child. Children have always been the primary consideration of Family Law in deciding parental arrangements, and the amended Divorce Act will now reflect that golden principle.

 

Chelsey Gauthier is an Associate within Lancaster’s Brooks & Welch LLP Family Law department and may be contacted at 905-641-1551

 

 

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