Series: Changes to the Divorce Act of Canada – Best Interest of the Child

For the first time in nearly 20 years, the Divorce Act of Canada is being amended and modernized.  SVR Family Lawyers takes you through some of the most significant changes in this series of articles on the upcoming changes to the Divorce Act. 

The Divorce Act applies to all Canadians who are married and in the process of divorcing.  Most of the amendments to the Divorce Act, are scheduled to take effect on March 1, 2021. 

There are four main objectives to the upcoming amendments:

1. Promotion of children’s best interests, including children’s physical, emotional and psychological safety, security and well-being;
2. Addressing family violence;
3. Reduction of child poverty; and
4. Increased accessibility and efficiency of the family justice system.

In this article we focus on the amendments pertaining to the promotion of children’s best interest.

Changes to Terminology

The amendments also include updates to outdated terminology such as “custody” and “access”.  These terms refer to a bundle of rights that parents have in relation to their children.  However this type of terminology tends to be emotional charged and can suggest that one parent (the “custodial parent”) is superior to, or greater than, the other parent (the “access parent”).  The updated Divorce Act will use language such as  “parenting time,” and “decision-making responsibility.” “Parenting time” (formerly “access”) refers to the time that children spend with each parent.  “Custody” is replaced with “decision-making responsibility,” which references wither, or both, parents’ responsibility for making major decisions relating to issues such as a child’s health, education, language, religion and extra-curricular activities. 

This new, more child-centered, terminology has already been widely used in the Alberta as it is contained in our provincial Family Law Act. 

Best Interests of the Child – A List of Factors to Consider

All decisions relating to children are to be made based on the best interests of each particular child.  This is true under the existing Divorce Act and continues to be the case after the amendments come into affect.  The amendments to the Divorce Act however will provide clearer guidance on the best interests analysis by incorporating a list of factors that may be considered. This is a non-exhaustive list and no particular criteria is prioritized over another.  Each criteria is to be weighed according to the specific the circumstances of each child. The list of factors is intended to provide clarity for the Courts, lawyers, parents and family justice professionals and to facilitate greater consistency in outcomes. The non-exhaustive list of factors includes, but is not limited to, the following:

1. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons;
3. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
4. The history of care of the child;
5. The child’s views and preferences;
6. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. Any plans for the child’s care;
8. 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;
9. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate;
10. Any family violence; and
11. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

This list of factors has already been incorporated into the Alberta Family Law Act, which applies to non married parents.  Therefore lawyers in Alberta are already well versed in considering and applying these factors and a substantial amount of case law applying these factors and defining the best interests of the child test already exists.  The amendments to the Divorce Act, which incorporate the list of factors, will help ensure consistency in parenting-related outcomes for children of both married and unmarried parents.

In its current format, the Divorce Act contains what is called the “maximum contact principle” which means that a child should spend as much time with each parent, as is consistent with the best interests of that particular child.   The amendments clarify the maximum contact principle by stating that it is subject to the “primary consideration” of the best interests of the child.   This means that, in making an order that relates to parenting time and decision making responsibility, the Court must consider the child’s physical, emotional and psychological safety, security and well-being above everything else. There is no presumption of equal parenting time. The “primary consideration” is of particular importance in cases involving family violence.

If you have questions or concerns about any of the above changes and how they may impact you, please contact SVR Family Lawyers. SVR Family Lawyers is a Calgary law firm with years of trusted experience in divorce and family law. In the coming weeks we will have new articles concerning other areas of the Divorce Act of Canada that have been amended and modernized.