Our Family Law Landscape
According to Statistic Canada’s, a sum of 71,269 divorces were filed across Canada in 2005 – Ontario alone accounted for 28,805 of the above-mentioned total. Gathering from the 2016 census, five million Canadians separated or divorced between 1991 and 2011. Over two million children were living in separated or divorced families.
The figures are significant because as the Hon. Jody Wilson-Raybould pointed out when she tabled Bill C-78 in 2018, our federal family legislation has not substantially changed in over 30 years. Divorce is more common now than when the Act came into force in 1968. Over the past three decades, the realities of Canadian families changed: family structures changed, and our justice system changed. Bill C-78 recognizes the long-overdue needs to make our family justice system more accessible and efficient.
Its four key objectives are:
- Promoting children’s best interests.
- Making Canada’s family justice system more accessible and efficient.
- Addressing family violence.
- Helping to reduce poverty. (42nd Parliament, 1st Session, Edited Hansard Number 326)
The bill received Royal Assent on June 21, 2019, meaning it is now law. However, due to interruptions caused by the Covid-19 pandemic, the coming into force date for most amendments made to the Divorce Act is now deferred until March 1, 2021.
Parenting Terminology: One Of The Most Contentious Issues In Family Law
Child “custody” and “access” are among the most heavily contested matters in family law and account for a disproportionately high number of court cases. (Canada, Department of Justice Canada, JustFacts: Family Law Cases, Research and Statistics Division. Ottawa: Department of Justice. June 2016.)
Apparently, the language used to describe parenting responsibilities in our legislation can fuel conflicts. Some academics suggested this may have to do with the terms, “custody” and “access” used in the Divorce Act. (Nicholas Bala, “Bringing Canada’s Divorce Act into the New Millennium: Enacting a Child-Focused Parenting Law” 40:2 Queen’s Law Journal 425.) For example, “custody” has the connotation of ownership. The terms “custody” and “access” also denote a winner-loser mentality where the “winner” is the custodial parent, and the “loser” is the access parent.
The proposed solution recommended by Special Joint Committee on Child Custody and Access was to replace the terms, “custody” and “access”, with more child-focused and parenting terminology, such as “parenting orders”, “parenting time” and “decision-making responsibility”. (Parliament of Canada, Special Joint Committee on Child Custody and Access, For the Sake of the Children. December 1998 at 27.)
Parent Orders: Section 16.1 Of The Divorce Act
The 2019 amendments to the Divorce Act codified existing practices found in family courts under common law and other related provincial family legislation, and introduced some new concepts not limited to “parenting time” and “decision-making responsibility.”
The Old section Of The Divorce Act reads:
Order For Custody
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
The New Section Of The Divorce Act Will Read:
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
a. “Parenting time”
Parenting time is defined as “time during which a person in the role of a parent is responsible for a child, including the time when the child is not physically in the care of that parent.” The 2019 amendments provided “parenting time” may be allocated according to a fixed schedule. Moreover, the concept of parenting time does not equate to a presumption of equal time.
.b. “Decision-making responsibility”
The 2019 amendments introduced the concept of “decision-making responsibility”, meaning making significant decisions about a child’s well-being, not limited to decisions about the child’s health, education, language, religion, and significant extra-curricular activities. This responsibility could be allocated to one or both parents. If a Court determines that joint-decision-making is unsuitable, the amendments recognize the option of allocating different decision-making responsibilities to a particular parent.
If you or someone you know needs legal help in a family matter, MEHDI AU LLP is a full-service firm that serves clients across the GTA and Ontario.
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