News Articles

New Parenting Provisions in Divorce

On December 10, 2002, the government announced its Child-centered Family Justice Strategy to help parents focus on the needs of their children following separation and divorce.  This new strategy sets out three pillars upon which a child-centered family justice system is hoped to be achieved.  The three pillars are (1) to minimize the potentially negative impact that separation and divorce have on children, (2) to try and provide parents with the tools that they need to reach parenting arrangements that are in the children's best interests, and (3) to try and ensure that the legal process is less adversarial such that only the most difficult cases will go to Court.

This new strategy proposes a number of amendments to the Divorce Act and the new amendments would apply to cases that commence after the proposed legislation comes into force by the government.

The main change that the government is making to the Divorce Act is that it is going to eliminate the terms custody and access from the Divorce Act for the purpose of determining parenting arrangements in divorce.  This is because the words custody and access have been seen to contribute to a winner/loser mentality that focuses on the rights of the parent, rather than on the best interests of the children.  For example, it is not uncommon to hear a parent talk about going to Court to win custody of the children.  Under the new amended model of the Divorce Act, the wording will focus on parental responsibilities.

Parental responsibilities will include determining who will have decision making responsibilities for decisions related to the child's health, education and religious upbringing as well as parenting time with each parent.  Parenting time is the period that the child spends under the care of a parent.  In difficult cases, the Court would make a 'Parenting Order' rather than a 'Custody Order'.  The amendments allow for numerous types of parenting arrangements to be formed by the Court depending on the specific circumstances of the child and what the Court finds to be in the best interests of the child.  There are no presumptions to be made in favour of any one type of parenting arrangement.  The test that is applied is the 'best interests of the child' test.

Another change to the Act is that in making a Parenting Order, the Court is required to consider 12 specific criteria in determining what is in a child's best interests.  This list is not exhaustive and other factors that are relevant to the circumstances of the child may be considered but it is new that our government has identified certain items that must be considered by the Court.  Examples of the proposed best interests criteria are:

1. the child's physical, emotional and psychological needs including the child's needs for stability, taking into account the child's age and stage of development;
2. the benefit to the child of developing and maintaining meaningful relationships with both parents and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
3. any family violence, including its impact on
   1. the safety of the child and other family members,
   2. the child's general well-being,
   3. the ability of the person who engaged in family violence to care and meet the needs of the child, and
   4. the appropriateness of making an Order that would require the spouses to cooperate on issues affecting the child;
4. the child's views and preferences to the extent that those can be reasonable ascertained. 

A further change is that our Courts will clearly have the authority to make Orders that can allow contact between a child and a person other than the spouse.  For example, a grandparent or another sibling.  Again, these Orders would be made on the basis of the best interests of the child.

These are some of the many changes that are being made to legislation to support the Child-centered Family Justice Strategy and hopefully with these changes, the three goals of the strategy will be met.

By Stacey M. Johnson
June 11, 2003