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Changes to Canadian Family Law: What You Need to Know About the Amended Divorce Act


Scales of justice

The Divorce Act is a crucial piece of Canadian legislation that outlines the criteria that must be

met in order to get divorced while also governing related issues such as decision-making

responsibility, parenting time, and child and spousal support. In March of 2021, the Divorce Act

saw significant changes. This blog post will explain these changes and help you better understand the current state of Canadian family law.

When it comes to family law issues involving children, many people are familiar with the words

“custody” and “access”. The current Divorce Act replaced these terms with “decision-making

responsibility” and “access”. Decision-making responsibility is defined as making important

decisions regarding the wellbeing of one’s child in relation to topics such as education, healthcare, religion, culture, and significant extra-curricular activities. Parenting time is the time in which the child is in the primary care of the parent. There are various arrangements when it comes to decision-making responsibility and parenting time. For example, one parent may have sole decision-making responsibility while both parents have equal parenting time.

Another critical amendment of the Divorce Act involves how decision-making responsibility and

parenting time are decided by the court. When it comes to such decisions, the only consideration

the judge will make is the best interests of the child. Prior to the 2021 changes, specific best interests were not referred to. Now, the Act states that the child’s physical, emotional and psychological safety, security, and wellbeing must be considered to determine the child’s best

interests. To do so, the Act sets out newly articulated factors that the court must take into account

such as “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability” and “the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child”. 1

When determining the best interests of the child, courts must also consider family violence, a

concept that was brand new to the Divorce Act as of March 2021. Under the Act, family violence

does not need to be a criminal offence. This means that it does not need to be proven beyond a

reasonable doubt, a very high threshold that criminal offences must meet. The court will analyze

how family violence impacts “the 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 order would apply to cooperate on issues affecting the child”. 2 The court will also consider multiple other factors which include “the nature, seriousness and frequency of the family violence and when it occurred,” “whether there is a pattern of coercive and controlling behaviour in relation to a family member,” and “whether the family violence causes the child or other family member to fear for their own safety or for that of another person”. 3

In light of these adjustments, we strongly advise clients who are navigating family law issues

related to children to consider how their choices and desires might impact their children, as well

as how these decisions could be interpreted by the court, before embarking on any legal proceedings. If you are still determining the best course of action to take and require guidance, our team at INB is here to assist you. Contact us at info@inbfamilylaw.com or 905-215-1905 to book your consultation.


 

1 Divorce Act, s.16 (3)(a); Divorce Act, s.16 (3)(h).

2 Divorce Act, s.16 (3)(j)(i); Divorce Act, s.16 (3)(j)(ii).

3 Divorce Act, s.16 (4)(a); Divorce Act, s.16 (4)(b); Divorce Act, s.16 (4)(f).


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