Recent Amendments to the Divorce Act
and Children’s Law Reform Act
As we anxiously awaited for the calendar to turn over from February to March this year, hoping for the end of the Covid-19 restrictions and for better weather to come, the federal and provincial governments successfully made significant changes to two important laws that impact family law clients, lawyers and judges, and others who are tangentially involved with them.
This blog will give a very brief summary of the recent amendments that came into effect on March 1, 2021, to the Divorce Act and the related changes to the Children’s Law Reform Act soon after that. For a more comprehensive review of the Divorce Act changes, I gladly refer you to the Federal Department of Justice website (www.justice.gc.ca).
The first important change is in the use of words “custody” and “access.” These terms have been used in family law for decades, and they have both legal and non-legal meanings attributed to them. Those meanings have worked for many but have created problems for others. Given the nature of family law matters, there has been a tendency to see the dispute as an “I-win/you-lose” position. If a client was awarded custody, the client was considered by many to have “won.” If they were awarded access, it was correspondingly considered a “loss.” It’s a terrible paradigm that has resulted in countless cases going to court to try and win or lose children, as if they were an inanimate prize to be held up, like a medal, a trophy, or an award.
Recognizing the improper significance placed on these words and the potential misuse and abuse of those words, the Federal Divorce Act, and correspondingly, the Ontario Children’s Law Reform Act, have replaced “custody” with “decision-making” and “access” with “parenting time.”
In theory, the term “decision-making” more accurately reflects the actual responsibility of the party towards the child – who gets to make certain decisions for the child – is it one parent alone, or both together? What decisions get to be made by them – health, education, general welfare, education? You can have a situation where one parent makes the health and general welfare decisions, but the other parent will make the education decisions. You will notice that it says nothing about where the child will live. You can have a situation where the parent makes significant decisions for the child, but the child does not live primarily with that parent. The issues are separate and distinct. It is intended/hoped that such ability to assign responsibilities relating the being a parent does not result in further court litigation.
Regarding the term “parenting time,” the term now accurately describes the right of the child to enjoy time with their parents, not vice-versa. Many parents were confused as to who had the right – the parent or the parent-child. For clarity, access was always the right of the child, but many parents did not treat this way. With the new wording, parenting times can be clearly understood and spelled out for each parent. This can be done by defining parenting time with specific dates and times or setting up as unspecified and liberal. Each family law situation is unique, so each parenting time regime can be crafted to reflect what works best for the child, especially as the child’s needs will change as they grow from being a toddler to a child to a pre-teen to a teenager.
The second important change is the introduction of access by a non-parent to a child. There was no specific right/provision for this in either the Divorce Act or the Children’s Law Reform Act to allow other family members, such as grandparents, to seek access to their grandchildren following the end of their child’s marriage, common-law relationship, or dating relationship. The law was somewhat “cloudy,” to say the least on “grandparent’s rights. With the changes, we now have a term where a grandparent or other relative can make a claim to have time with that child/children. This new term is a “contact order.” For example, following the end of a 7-year-marriage between her son and his wife, a grandmother can make a claim for a contact order for her two grandchildren to see them separate and apart from the parenting time enjoyed by her son.
This leads to the third important change. Up until now, the test used by the courts to determine custody and access under the Divorce Act was a little different than the test used by the courts to determine custody and access under the Children’s Law Reform Act. Now, there’s only one test, and that that is referred to as “the best interests” test. Further, this test will also be used to determine whether a non-parent should be awarded contact time with a child. Once again, with this change, the focus is on what is best for the child and not what is best for the person seeking the order, whether a parent or non-parent. Under “the best interests” test, the courts will look at various factors to establish whether it is in the best interests of the child for the parent to have decision-making authority and/or parenting time with the child, and the same “best interests” test for a non-parent to have contact with a child. These factors include:
- the child’s needs, given the child’s age and stage of development
- the nature and strength of the child’s relationship with each spouse, the child’s siblings and grandparents, and any other person who plays an important role in the child’s life;
- each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- the history of care of the child;
- the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- any plans for the child’s care;
- the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- any family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- any civil or criminal proceeding, order, condition, or measure relevant to the child’s safety, security, and well-being.
For those parents or clients who have fought over custody and access before in the courts, this test is not new, but it is somewhat new for divorcing parents. For them, there is less emphasis on maximizing contact between a parent and a child and more emphasis on the child’s physical, emotional and psychological safety, security, and well-being.
Finally, other changes relate to both parents and their lawyers involved in a family law dispute.
As a parent, you now have the following duties:
- Exercising responsibilities in the best interests of the child;
- Protecting children from conflict;
- Where appropriate, trying to resolve matters through family dispute resolution;
- Providing complete, accurate, and up-to-date information as required, which would include income and asset disclosure as well as information about other orders and court proceedings; and,
- Complying with court orders until they are no longer in effect
As a family law lawyer, I now have a duty to bring certain facts to a parent-client’s attention:
- Encourage the use of family dispute resolution, unless it would be inappropriate to do so
- Inform clients about family justice services that might assist them in resolving issues and/or comply with an order or a decision
- Inform clients about the client’s duties under the Act
There are other changes that are important to all of us involved in helping parties navigate the end of their marriage. Once again, I direct you to the website reference above. These changes are child-focused, which aligns with the viewpoint of our judges – they must decide on what is best for the child and not necessarily on what is best for the parents. It is hoped that these changes will create a meaningful paradigm shift to help re-focus the priorities of families entangled in family law disputes from “I know my rights as a parent” to “I accept my responsibilities as a parent.” If the changes do not have this impact, then once again, there will be “no winners” in family law litigation – there will only be “degrees of loss.”