The 2020 updates to the Divorce Act strongly favour the best interest of children along with promoting a healthy and low conflict co-parenting relationship. The changes in terminology help create a healthier environment for families going through a separation by removing combative language from co-parenting conversations.
"Promoting the best interests of the child"
In family law, a child’s best interests is the top priority when making parenting decisions.
The Divorce Act will promote this through several different measures:
1. Best interests’ criteria
These amendments set out a list of specific factors that a court must consider when deciding what would be in a child’s best interests in the child’s particular situation. Along with the main considerations of the child’s physical, emotional and psychological safety and wellbeing, other factors include:
The nature and strength of the child’s relationships with parents, grandparents, and other important people in their life.
The child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
The child’s views and preferences
Each child is different and each family is different. There is no one-size-fits-all parenting arrangement. Courts will be required to order parenting time to each parent based on the child’s best interests. The best interests criteria will help courts tailor parenting arrangements for each child’s specific situation.
2. Child-focused terminology
There are also changes to the wording used to describe parenting arrangements. This makes the law more child-focused, with a greater emphasis on the actual tasks of parenting. The new approach uses "parenting orders" to replace orders for custody and access under the Divorce Act.
A parenting order sets out each parent’s “decision-making responsibilities,” which refers to making important decisions on behalf of a child, and "parenting time." Both parents could have parenting time, depending on each child’s best interests. The new wording is neutral and emphasizes that both former spouses will be caring for their child when the child is with them.
This more neutral wording is also less likely to reinforce the idea of a "winner" and a "loser" in decisions about parenting arrangements.
3. Changes of residence
Other amendments to the Divorce Act address issues with parents or children relocating following a divorce. A new requirement to give notice of plans to move helps make sure that key information about a potential move is shared with others who have responsibilities for the child. A court will be able to modify the notice requirements where safety is an issue. There are also new guidelines to help courts decide whether the move would be in a child’s best interests and should be allowed.
4. Changes to the Divorce Act
Federal laws related to divorce proceedings and family orders were amended with the passage of Bill C-78, with the majority of changes to the Divorce Act coming into effect on July 1, 2020.
The changes include updated criteria to determine a child’s best interests in custody cases, as well as measures to address family violence when making parenting arrangements.
The changes also aim to make the family justice system “more accessible and affordable” for everyone involved.
The Divorce Act applies to married couples who are divorcing, while provincial and territorial legislation applies to all other spousal separations, including those involving unmarried and common-law couples.