Upcoming Changes to the Divorce Act Regarding Custody and Access

Date: 19 Mar, 2021

On March 1, 2021, significant changes to the Divorce Act are finally coming into force after the government deferred the coming into force date. One of the main goals of these legislative changes relates to the best interests of children and promoting the same.  The best interests of the child is the only consideration for parenting decisions under the Divorce Act. Various changes to the Divorce Act ensure that this principle is the key focus. There is a non exhaustive list of the best interests of the child criteria. A “primary consideration” specifies that a child’s safety, security, and well being are the most important factors for a court to consider. One of the best interests of the child criteria will require the court to consider the willingness of the person seeking custody to facilitate contact with the other parent. Family lawyers are all too familiar with the difficulty parents face in encouraging the child to have a relationship with the other following a separation. Decisions about parenting time are subject to the child’s best interests. Another change relates to the definition of family violence which will include direct or indirect exposure to violent, threatening, coercive and controlling behaviour when children are concerned. The court will consider family violence and its impact on the ability and willingness of any person engaged in violence to care for and meet the child’s needs.

One of the most significant changes relates to the removal of the terms “custody” and “access”. The new language focuses on a parent’s responsibilities for their children. “Parenting Orders” will focus on “parenting time” and “decision-making responsibility”. The goal of these changes is to reduce “winners” and “losers” in family law as it relates to children.

Additional changes to the Divorce Act include a framework for changes of residence and relocation of children, an area that faced criticism over the years.

It has been several years since significant changes have been implemented in family law. The amendments to the Divorce Act seek to shift the way that parents, lawyers, and judges deal with claims regarding children under this statute. It will be interesting to see in the coming years if such legislative amendments are successful in accomplishing this shift.

For more information on these changes, please refer to the Legislative Background and Changes to the Divorce Act published by the Department of Justice.