There are amendments to the Divorce Act effective March 1, 2021. One of the changes is that all parties to a divorce action will now be required to acknowledge certain duties that they are under. These are:
- Exercising responsibilities in the best interests of the child;
- Protecting children from conflict;
- Where appropriate, trying to resolve matters through family dispute resolution;
- Providing complete, accurate and up-to-date information as required. This will include income and asset disclosure; and, information about other orders and proceedings that are relevant; and,
- Complying with orders until no longer in effect.
Changes to the Language in the Divorce Act
One of the major changes is around language, primarily around parenting. During your discussions with your lawyer, you will have heard them speak about joint or sole custody. This will now be referred to as decision-making responsibilities. Also, all time spent with the children will be referred to as parenting time.
Another change you may see occur in your matter is around the way best interests of the children is discussed. Best interests of the children have always been the basis upon which parenting matters are decided, but there was no firm set of factors that had to be considered. Now there is. Your lawyer should discuss these with you as they relate to you and your matter.
Decision Making Responsibilities
The Divorce Act contains provisions with respect to decision-making responsibilities and parenting time for dependent children. Decision-making responsibilities have nothing to do with the amount of time a child or children are with either parent, but provide who has the responsibilities over major decisions such as religion, non-emergency health care matters, what educational system a child should be enrolled in, what school a child should attend and what extra-curricular activities a child should be involved in. One parent or both parents can have decision-making responsibilities over one or more decisions and there may be a combination where a parent may have sole decision-making responsibilities over one area and joint decision-making responsibilities over other areas. The test a court will apply in determining who should have decision-making responsibilities and what the parenting regime should be is “the best interests of the child.” This is new terminology based on amendments made to the Divorce Act effective March 1, 2021, so there may be emerging case law that will change the law from its current state around decision-making responsibilities.
Currently, in a sole decision-making situations, one parent has the right to make decisions with respect to the children. If the other parent disputes a decision that is made, the only recourse that parent would have is to ask the Court to alter the decision. The Court would then make a determination based on what is in the best interests of the Children. In a joint decision-making arrangement, the parents will consult with one another and make joint decisions regarding the health, education and general welfare of the children. There has been a strong presumption in favour of joint decision-making responsibilities.
Exercising Parenting Time
Parenting Time involves what amount of time a child spends with each parent and when a child spends time with each parent. All matters of parenting are determined based on what is considered to be in the best interests of the child/children. The amended Divorce Act provides guidance on how best interests will be considered by the Court, but it is expected that where both parents are in agreement regarding the parenting plan for their child/children, a Court will not likely question it and will defer to the parents view on this matter. That has been consistently followed and is not expected to change with the amendments to the Divorce Act.
Parenting schedules can be anything that both parties agree is in the best interests of the child/children. Typically, however, parenting plans fall into one of two general categories: a primary parent regime or a shared parenting regime. A primary parent regime is when the children are primarily with one parent and the other parent exercises more limited parenting time with them, either on a reasonable basis or at specified times. Shared parenting is when each parent spends roughly equal time with the children.
Changes Regarding Relocation
A significant change in the amendments to the Divorce Act is around Relocation. This was previously referred to as mobility, but the amendments change the law around a parent moving considerably.
The amendments to the Divorce Act now impose a mandatory obligation on a parent to provide notice of a relocation (change in residence) to anyone else with parenting time, decision-making responsibility or contact order of the intended move. There are set timelines (60 days) and forms for most situations and there are responses required to these forms if you are provided notice and consent or dispute the relocation. Again, the best interests of the Children is the test that will be applied, but the test has now changed. The factors to evaluate best interests for any parenting situation will be used, but in a Relocation, there are additional factors that can be considered as well.
We cannot express enough that if you have an intention to move or relocate to please contact a lawyer as soon as possible to discuss whether the relocation provisions will apply to you, what your obligations are and how to satisfy your obligations. Similarly, if you are provided with a Notice of a Relocation, please contact legal counsel as soon as possible. If you wish to discuss these changes, please connect with us as we will be happy to assist you.