Decision making (formerly known as custody) is a general term describing who is responsible for making the decisions about a child's medical, educational and religious needs.

 

Ontario Divorce Attorneys are now dealing with significant changes to the Divorce Act.

On March 1, 2021, the changes to the Divorce Act came into play. The expected changes were to go into effect July 1, 2020; however, they were delayed due to the COVID-19 Pandemic.

The following are a summary of the changes in the Divorce Act;

 

Custody/Access v. Decision-making/Parenting Time

The new language under the Divorce Act is very similar to British Columbia's Family Law Act, replacing "custody" and "access" with "decision-making," "parenting time," and "contact." 

 

This change to the Divorce Act is important as all court Orders issued after March 1, 2021, must contain the correct new language in the Divorce Act.

Child custody lawyers have welcomed this new language as it veers away from child custody being akin to the possession of property. 

 

Broadening the Definition of Family Violence

What is significant with the new Divorce Act is that it broadens the definition of family violence, including physical violence, psychological abuse, financial abuse, and the killing or harming of animals. 

A key element here is that the Act clarifies that family violence does not need to be a criminal offense or proven "beyond a reasonable doubt," but instead based on the civil burden of proof, that being on a balance of probabilities.

Divorce lawyers in Ontario have long discussed the difficulties in representing victims of violence where their abuser received a Peace Bond or the charges dismissed. This new element to the Divorce Act is vital in protecting victims of abuse.

 

Best Interests of the Child

Another change to the Divorce Act is emphasizing the "child's best interest." The "best interest of the child" is the only consideration to be taken into account when determining parenting Orders. Durham custody lawyers have generally argued their cases based upon the child's best interest, amongst other considerations. The "child's best interest" will now be the only element considered by the courts. The following factors must be considered under the new Divorce Act when determining a child's best interests:

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• the child's needs, given the child's age and stage of development, such as the child's need for stability;

• the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents, and any other person who plays an essential role in the child's life;

• each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

• the history of care of the child;

• the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

• the child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

• any plans for the child's care;

• ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

• the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

• any family violence and its impact on, among other things:

  • 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 ruling would apply to cooperate on issues affecting the child; and

• any civil or criminal proceeding, order, condition, or measure relevant to the safety, security, and well-being of the child

 

A significant change in the new Divorce Act is that the "maximum contact principle" between a child and a parent has been removed as this may be inconsistent with the child's best interest. The previous Act encouraged this maximum contact principle, and many divorce lawyers in Ontario used this principle to argue for shared parenting. With the new Act, it is clear that there is no presumption of shared parenting, but rather the "child's best interest" is paramount.

 

Lawyers for child custody cases have long argued that the maximum contact principle can directly conflict with the child's best interest. How often has the lawyer acting for children found themselves caught between protecting the child's best interest and this principle? Far too many, I suspect. Many child custody lawyers in Oshawa will welcome these changes to the new Act.

 

Dispute Resolution

The new Divorce Act also emphasizes and encourages the resolution of disputes outside of Court. Lawyers will be required to inform and encourage clients to participate in alternative dispute resolution, including negotiation, mediation, or Collaborative law. 

Over the last 24 months of the COVID crisis, Durham divorce lawyers have encouraged clients to attend mediation and other forms of dispute resolution. Divorce lawyers in Ontario have generally found these alternative dispute forums hugely beneficial to clients, both financially and emotionally.

Durham lawyers are veering to settle disputes arising from cohabitation agreements through these negotiation-based alternative forums. COVID has brought many changes to the legal world, and separation lawyers now see the advantages to clients in opting out of the Court system. 

 

Relocation

The new Divorce Act speaks to 3 scenarios where a party plans to move from their current residence with a child or children. There are different procedures depending upon if the separated parties have an existing court Order or Agreement regarding parenting time and decision-making responsibilities.

The new Divorce Act sets out separate rules for three different relocation scenarios:

• The first scenario is when a child's primary parent wants to move, and the move will not significantly impact the child's relationship with a person who has parenting time, contact, or decision-making responsibility. In these cases, the person who wishes to move must provide written notice of their move date and the intended new address. As the move will not significantly impact the child's relationship with other parties, there is no need to object.

• The second scenario is when a parent of a child wants to move, and the move will significantly impact the child's relationship with a person who has parenting time or contact. In this situation, the person planning to move must provide 60 days notice in writing to any person who has parenting time, contact, or decision-making authority. The notice must state:

  • the date of the relocation;

  • the address of the new place of residence, including contact information; and

  • a proposal about how parenting time, contact, or decision-making responsibility will be exercised if the person were to move with the child

 

If the non-moving person with parenting time or decision-making responsibilities objects to the move, they have 30 days to file an objection. To object, they must file a court application. If no objection is filed, the person who wishes to move can do so.

 

If the non-moving person has contact but not parenting time or decision-making responsibilities, they cannot file an objection or stop the relocation.

 

If an objection is filed, the burden of proof to show that relocation is or isn't in the child's best interests varies and depends on the existing parenting arrangement.

 

If the parties have "substantially equal" parenting time, then the person who wants to move must prove the relocation is in the child's best interests. If the moving party has the "vast majority" of parenting time, then the person objecting to the move must prove it is not in the child's best interests. If it's somewhere between, both parties share the burden of proof.

• In the third scenario, if someone who has contact wishes to move, they must provide written notice containing the date of the move and the new intended address. If this move has a "significant impact" on the child involved, the person with contact wishing to move must also provide 60 days' notice and a proposal of how to exercise their contact once the move happens. No one can object to someone with contact moving.

 

If you wish to consult with a divorce lawyer in Oshawa, a divorce lawyer in Whitby, or a divorce lawyer in Durham, please do not hesitate to contact our team at TMB Law. If you seek a Divorce Attorney in the GTA, we are happy to set up a Zoom consultation to answer all of your questions about the new Divorce Act.