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What You Need to Know About the Amended Divorce Act

  • Terminology Changes: The amended Divorce Act replaces “custody” and “access” with “decision-making responsibility” and “parenting time.”
  • Best Interests Focus: The Act now specifies that the child’s physical, emotional, and psychological safety, security, and wellbeing must be considered.
  • Family Violence Considerations: The amendments include family violence as a factor in determining child-related decisions, even if not criminal.
Justice Scale and Gavel on a Desk

Changes to Canadian Family Law

The Divorce Act is a crucial piece of Canadian legislation that outlines the criteria that must be met in order to get divorced while also governing related issues such as decision-making responsibility, parenting time, and child and spousal support. In March of 2021, the Divorce Act saw significant changes. This blog post will explain these changes and help you better understand the current state of Canadian family law.

Terminology Changes: Custody and Access

When it comes to family law issues involving children, many people are familiar with the words “custody” and “access.” The current Divorce Act replaced these terms with “decision-making responsibility” and “parenting time.” Decision-making responsibility is defined as making important decisions regarding the wellbeing of one’s child in relation to topics such as education, healthcare, religion, culture, and significant extracurricular activities. Parenting time is the time in which the child is in the primary care of the parent. There are various arrangements when it comes to decision-making responsibility and parenting time. For example, one parent may have sole decision-making responsibility while both parents have equal parenting time.

Best Interests of the Child

Another critical amendment of the Divorce Act involves how decision-making responsibility and parenting time are decided by the court. When it comes to such decisions, the only consideration the judge will make is the best interests of the child. Prior to the 2021 changes, specific best interests were not referred to. Now, the Act states that the child’s physical, emotional, and psychological safety, security, and wellbeing must be considered to determine the child’s best interests. To do so, the Act sets out newly articulated factors that the court must take into account, such as “the child’s needs given the child’s age and stage of development, such as the child’s need for stability” and “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.” (1)

Family Violence Considerations

When determining the best interests of the child, courts must also consider family violence, a concept that was brand new to the Divorce Act as of March 2021. Under the Act, family violence does not need to be a criminal offence. This means that it does not need to be proven beyond a reasonable doubt, a very high threshold that criminal offences must meet. The court will analyze how family violence impacts “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.” (2)

Factors Considered by the Court

The court will also consider multiple other factors, which include “the nature, seriousness, and frequency of the family violence and when it occurred,” “whether there is a pattern of coercive and controlling behaviour in relation to a family member,” and “whether the family violence causes the child or other family member to fear for their own safety or for that of another person.” (3)

Seeking Guidance

In light of these adjustments, we strongly advise clients who are navigating family law issues related to children to consider how their choices and desires might impact their children as well as how these decisions could be interpreted by the court before embarking on any legal proceedings. If you are still determining the best course of action to take and require guidance, our team at INB is here to assist you. Contact us to book your consultation.

1 Divorce Act, s.16 (3)(a); Divorce Act, s.16 (3)(h).
2 Divorce Act, s.16 (3)(j)(i); Divorce Act, s.16 (3)(j)(ii).
3 Divorce Act, s.16 (4)(a); Divorce Act, s.16 (4)(b); Divorce Act, s.16 (4)(f).