March 3, 2021
As of March 1, 2021 the world of divorce in Canada changed. So what is different? Quite a bit.
All the changes have been made to the Federal Divorce Act. The key objectives of the changes are to promote the best interests of children in divorce, to address family violence, help to reduce poverty and to make the justice system more accessible and efficient.
What has not changed is anything to do with child support, spousal support, or the basis for a divorce (such as adultery, cruelty and being separated for a year). Those are all the same. The changes mostly focus on parenting.
The key point is that if you are divorcing, the word “custody” has disappeared from the law. All the language of “sole custody” or “joint custody” is now gone. The new language is focused on parenting responsibilities. Courts can now make “parenting orders” instead of “custody orders”. They will talk about parenting decision-making responsibility and parenting time.
If you are divorcing, you will be encouraged to put a parenting plan in place.
Note that this does not make any old court orders or agreements invalid. The old orders are still good, and you do not have to get back into court to change them. What it does mean is that if you are in court now, everything will be decided based upon the new law as of March 1.
Remember this is for divorcing people only. If you are common law and separating, the provincial laws still use the old language of custody and access. The government of Ontario is working on changing those laws, but they are not there yet.
If you are currently in divorce court, it means most of the court forms have been changed. At this point, 31 forms are different: some of them considerably different.
So, what is parenting decision-making? It means significant decisions about your child’s well-being. Those are decisions about their health, education, culture, language, religion, spirituality, and significant extra-curricular activities.
There is no presumption of equal time to both parents and maximum time with both parents. The law is now only what is in the best interests of the child. This is now enhanced under the new law. The law now lists 11 factors for the child’s best interests. They are all in section 16 of the law.
Family violence is given more priority in the new laws. Even if there are no criminal charges, the conduct of a parent if it is violent, threatening, coercive and controlling will be considered.
There is also a new framework around the question of moving from the area. There are “relocation” laws in the new Act. The law now says there must be a child-focused definition of “relocation”, a mandatory 60-day notice period and assessment of the best interests of the child. These laws only apply if you already have an order from the court about custody. If there is no order, they do not apply to you.
These are quite significant changes, and we expect the province of Ontario will be moving quickly to have the same types of laws apply to common law couples.
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