The New Divorce Act & Parenting OrdersThe Honourable Judy Wilson-Raybould pointed out that our federal family legislation has not substantially changed in over 30 years when she tabled Bill C-78 in 2018.  When the Act first came into force in 1968, divorces were not as common as they are now, and common law relationship were even more scarce, if at all existent.  Over the last 30 years, family dynamics have substantially changed, and Bill C-78 realizes that these changes were long overdue in order to make our family justice system more efficient and accessible.

On June 29, 2019, Bill C-78 received Royal Assent, making it a law.  Most of the new amendments are set to come into effect on March 1, 2021.

The four key objectives are:

  • Promoting children's best interests;
  • Making Canada's family justice system more accessible and efficient;
  • Addressing family violence; and
  • Helping to reduce poverty

Parenting Terminology

Most people find the terms child 'custody' and 'access' to be the most confusing and heavily contested matters in family law, as they account for an extremely high number of court cases (Canada, Department of Justice Canada, Just Facts: Family Law Cases, Research and Statistics Division.  Ottawa: Department of Justice, June 2016 - https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/flc-cdf.html)

The language used to describe parenting responsibilities in family law matters can actually fuel conflicts even more.  "Use of the terms custody and access has been criticized.  It is argued that the terms are inappropriate to describe a parent-child relationship because they have connotations of the old concept of the child as the property of the parents, and because they encourage parents to focus on their rights rather than on their responsibilities" (Canada, Department of Justice, Final Federal-Provincial-Territorial Report on Custody and Access and Child Support - https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/flc2002/p3.html).  It seems these terms denote a 'winner - loser' mentality wherein the winner is the parent with child custody.

The Special Joint Committee on Child Custody and Access was to replace the terms 'custody' and 'access' with more child-focused and parenting terminology, such as 'parenting orders', 'parenting time' and 'decision making responsibility' (Parliament of Canada, Special Joint Committee on Child Custody and Access, For The Sake of the Children, December 1998 - https://canada.justice.gc.ca/eng/rp-pr/fl-lf/famil/sjcarp02/pdf/sjcarp02.pdf).

Section 16.1 of the Divorce Act: Parenting Orders  

The 2019 amendments to the Divorce Act codified existing practices found in family law courts under common law and other related provincial family legislation, and introduced some new concepts not limited to parenting time and decision making responsibility.

Order for Custody (the old Act)

16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access, or the custody of and access to, and all children of the marriage.

Parenting Order (the new Act)

16.1(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision making responsibility in respect of any child of the marriage, on application by:

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Parenting Time

Parenting time is defined as "time during which a person in the role of a parent is responsible for a child, including the time when the child is not physically in the care of that parent".  The 2019 amendments providing parenting time may be allocated according to a fixed schedule and the concept of parenting time does not equate to a presumption of equal time. (Canada, Department of Justice, Legislative Background, et al - https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/c78/03.html).

"The legislation preserves the Divorce Act principle that a child should spend as much time with each parent as is consistent with the child’s best interests. Under the current Divorce Act, this is reflected in what is known as the “maximum contact principle.” This principle is now subject to the “primary consideration” that a court must consider a child’s physical, emotional and psychological safety, security and well-being above all else. This may be particularly important in cases of family violence." (Canada, Department of Justice, Legislative Background, et al - https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/c78/03.html). 

Decision Making Responsibility

The 2019 amendments introduced the concept of 'decision making responsibility', meaning making significant decisions about a child's well-being, and such decisions not being limited to decisions about the child's health, education, language, and significant extra-cirricular activities.  This responsibility could be allocated to one or both parents.  If a court determines that joint-decision making is not possible, the amendments recognize the option of allocating different decision making responsibilities to a particular parent.

“Significant extra-curricular activities is included as one of the enumerated items in the definition of decision-making responsibility. Such activities are often the subject of considerable disagreement and sometimes litigation. This provision will guide parents and courts to consider these issues as early as possible in the process of coming to agreements. The term is intended to capture activities that require a greater investment of a family’s resources, whether in terms of time or finances." (Canada, Department of Justice, Legislative Background, et al - https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/c78/03.html)

These issues can often be dealt with in mediation instead of a court which will lead to a positive co-parenting relationship as well save you time, money and stress. 


Written by Marian Grande, Mediator
AUGUST 6, 2020

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