On March 1, 2021, the federal Divorce Act is changing. As of that date, if you’re in the process of getting a divorce, or are thinking about getting divorced, the new rules will apply to you. Learn about some of the important changes coming to Canada’s divorce law.
As of March 1, 2021, the terms “custody” and “access” won’t be used in the Divorce Act. Instead, new terms will be used to talk about parenting arrangements after separation.
Decision-making responsibility replaces “custody.” The new term covers important parenting choices involving things like children’s health, education, language, and religion. These responsibilities can be shared between spouses or given to one spouse alone. A spouse with decision-making responsibility has the right to get information about their children’s health, education and well-being.
Parenting time means the time a spouse spends with a child. A spouse with parenting time has the right to make day-to-day decisions (including emergency decisions) about a child during their time with the child. They also have the right to get information about their children’s health, education and well-being.
Contact refers to the time that someone who isn’t a spouse might have with a child, like a grandparent. Someone with contact does not have the right to make day-to-day decisions about a child. Nor do they have the right to get information about the children’s health, education and well-being.
When a court makes a decision about a child, it must be guided by only the best interests of the child. What’s new as of March 1, 2021, is a list of specific factors that the court and spouses can consider when deciding what’s in a child’s best interests. The factors include:
the child’s views and preferences
any court action or order relevant to the child’s safety and well-being
any family violence
When considering these and other factors, the court must give priority to the child’s physical, emotional, and psychological safety, security, and well-being.
In the new Divorce Act, family violence is defined. It means physical abuse as well as sexual abuse, psychological abuse, and financial abuse. The definition also includes harassment and threats of harm to persons, pets, and property.
Also new is that the court will have to consider any existing or upcoming civil protection, child protection, or criminal court actions when family violence is an issue.
The court will also have to consider whether family violence is a factor when making a decision about the “best interests of a child.” If it is, then the court has to examine another important list of factors, including:
how often and how serious the family violence is
whether there is a pattern of coercive and controlling behaviour
whether the person who has been violent has taken any steps to prevent future violence and improve their parenting
Starting March 1, 2021, new rules will apply to what happens when someone wants to move away, with or without their child. When the move is likely to have a “significant impact” on the relationship a child has with someone who has parenting time, decision-making responsibility, or contact, the law calls this relocation.
Under the new law, when someone plans to relocate, they have to give 60 days’ written notice. This must be given to anyone who has parenting time, decision-making responsibility, or contact. (Notice may not have to be given if there is family violence.) Someone with parenting time or decision-making responsibility has 30 days to object to the relocation by giving written notice of their objection or filing a court application. Someone with contact cannot object to a plan to relocate.
Starting March 1, 2021, the terms “custody” and “access” won’t be used in the Divorce Act. The change to the Divorce Act won’t change older agreements or orders that talk about custody and access.
A former spouse with “custody” under an older agreement or order will have decision-making responsibility and parenting time. A former spouse who has “access” but not custody will have parenting time. But, they still won’t be able to participate in making decisions about their child, other than day-to-day decisions. Someone who has “access” to a child but isn’t a spouse will have contact with the child.
Your custody and access agreement or order will still be valid after the new Divorce Act comes into effect. Some legal terms have changed, but those changes don’t require you to go to court to update your existing agreement or order.
To make a change to a Divorce Act custody or access order, you or the other spouse has to prove there’s been an important change that affects your children. This is called a “change in circumstances” in the Act. The changes to the Divorce Act are not a change in circumstances.