Changes to Divorce Act Proposed – No More Custody

Date: 29 May, 2018| Author: Fred Streiman

On May 22, 2018 the Federal Government introduced Bill C-78.

It’s most important provision is removing the term “Custody” and “Access” from a court order replacing them with “Parenting Orders” in which parenting time and decision making is allocated between the parents.

As always, the only factor for the court to take into account is the best interests of the children.

This is both a symbolic and superficial change.

We have long advocated that the terms “Custody” and “Joint Custody” are largely superficial gift wrapping and that the real power lies in the details of any court order or agreement that follows. The actual division of time and who bears responsibility to make important decisions regarding the child/children’s schooling, the ability to move and making health decisions are where the real power lies in any agreement or order.

Of course, all of this should be completely irrelevant. In an ideal world, parents who recognise that they can no longer be together should work co-operatively in advancing the best interests of their children. Life produces many immediate changes and demands for the care and upbringing of children. Common sense should prevail in what is best for a child without having to look at the terms of a separation agreement or court order. But, this is not an ideal world and, in an ideal world there would be no such thing as a family law lawyer.

The proposed amendments to the Divorce Act also encourages the use of facilities outside of court to resolve problems, such as family mediation but alas there needs to be enabling legislation by the Province of Ontario which as of yet does not exist.

Another important area that the proposed law deals with is the area of “mobility rights” or simply put, moving the residence of the child and the custodial parent. The Supreme Court of Canada in Gordon v. Goertz provided some guidance however, the new bill proposes a set of uniform rules to assist the court in determining whether or not a parent may move with a child/children. There are important requirements for notice to be given to the other parent when a move is anticipated.

The reason for the proposed move becomes a paramount consideration for the courts in determining whether or not such a move is to be permitted.

The proposed Act also provides for a new Judicial power namely, “Contact Orders” for non-spouses and Grandparents. This has been a mine field for the courts when Grandparents’ find themselves simply shut out from the close bonds they have formed with their grandchildren.

What the Act does not do, to the disappointment of fathers’ rights groups is insert the presumption of shared parenting.

Shared parenting as a starting position may not always work or be in the best interests of the children. However, in this writer’s view, the courts have been promoting ever more frequent and extensive contact between the non-custodial parent and child, often the father.

Of course, all of this is only proposed and we will know by the end of the year what the actual Act will look like.