This is the first entry in a series covering practical implications of the Divorce Act amendments, which came into effect on March 1, 2021.
This article is not to be taken as legal advice.
Divorce Act Amendments: Parenting Time – Shifted Principles and Best Interests of the Child
When Archie traveled frequently for work, his scheduled parenting arrangement with his ex, Veronica, was fine. Their son Jughead, age 10, lived with Veronica but stayed with Archie for one weekend each month.
However, Archie recently took on a new role that no longer required frequent travel. He approached Veronica about changing their parenting arrangement to give him more “access” to Jughead. Veronica disagreed.
They lived in different cities, a four-hour drive each way. Veronica did not think it was worth further inconveniencing Jughead, who already had a full schedule with homework and middle school sports. Veronica mentioned that Archie has always had generous time with Jughead over Skype and FaceTime, which should be enough contact between his scheduled weekends.
Archie and Veronica were unable to reach a compromise, so Archie went to his lawyer. He said that he wanted more “access” to Jughead. Archie’s lawyer first explained that, with the recent Divorce Act amendments effective March 1, 2021, “access” and similar terms have been replaced with the more inclusive “parenting time”.
Archie wondered what could be so important about some shifts in terminology.
Like Archie, you’re probably wondering why it matters that words like “access” have been changed to “parenting time”, or why the long-standing term “custody” was struck to make way for “decision-making responsibility”.
Are there practical implications here, beyond just updating some old definitions to reflect modern views on parenting and responsibility?
One implication is how Courts may view parenting disputes going forward. Taking out the word “custody” marks a policy shift away from the heated “custody battles” where there are winners and losers.
“Decision-making responsibility” promotes cooperation and more granular parental control—e.g., one parent could make decisions about education, while the other could make decisions about health care; some decisions may require consensus, etc.
The underlying message is that Courts will be more receptive to pleadings if the parents have already made best efforts to collaborate, participate in dispute resolution programs, or have created a parenting plan that has the child’s best interests at heart.
If Archie seeks an application granting him more parenting time with Jughead, he should be aware of at least two aspects of the Divorce Act amendments:
- Factors that the Courts will consider when determining the best interests of the child; and
- Newly changed principles or presumptions of parenting.
Factors in Determining the Best Interests of the Child
The lynchpin of many of the Divorce Act changes is that the best interests of the child are the Courts’ sole or paramount consideration when making an order concerning that child. When necessary, ensuring the child’s safety and security will have primary consideration over all other factors.
A list of factors for determining the best interests of the child was added to the new Divorce Act under s 16(3). Despite being a lengthy list, it is still inexhaustive. Courts may consider factors outside of s 16(3) where relevant and appropriate.
Archie will have to demonstrate that having more in-person parenting time with Jughead would be in his son’s best interests, outweighing minor inconveniences to Jughead’s schedule or the additional time spent driving him between cities.
At age 10, Jughead’s own preference will be carefully considered as one of the s 16(3) factors.
Altered Principles and Presumptions
Less Priority Given to Maximum Contact
One of the Divorce Act’s most significant shifts in policy, for Archie’s case and many others, is the deletion of the “Maximum Contact” marginal notes.
Although not actually part of legislative statutes, lawyers and judges have often referred to the marginal note subheadings in front of a section to clarify what legislators might have intended when drafting that section.
When Courts gave effect to “maximum contact” in the past, it meant they would be more receptive to parenting plans that gave each parent as much parenting time as possible. This was based on a presumption that it was in the child’s best interests to have as much contact as possible with both parents.
In the new Divorce Act, maximum contact has been replaced with “Parenting time consistent with best interests of child” under s 16(6).
Therefore, even if a parenting plan doesn’t give each parent as much parenting time as possible, the Courts will still prefer it over a “maximized contact” plan if it is found to be in the best interests of the child when weighing all other factors.
The Court will consider Archie’s application for more in-person parenting time with Jughead through the lens of what would be in his son’s best interests, in accordance with s 16.
If the Court finds that Jughead’s regular schedule would be disproportionately disrupted by long or frequent car rides, the Court might not grant Archie as much in-person parenting time as he wants. The Court may also find that Archie’s virtual parenting time is enough to build his relationship with Archie and offset the limited amount of weekend stays.
Another new principle gives the parent whose parenting time it is a little more credit vis-à-vis their parenting ability.
Section 16.2(2) of the new Divorce Act provides that, absent a court order stating otherwise, “day-to-day” decisions affecting the child will be made by the parent exercising parenting time, without needing to consult with the other parent. Day-to-day decisions would include bedtimes, meals, and other ordinary decisions throughout a child’s day.
This change presumes that a parent exercising parenting time can properly make ordinary decisions for the child. This promotes equal effort parenting and, going back to the changed definitions, combats the stereotype of an “access parent” who is reluctant or apathetic about taking on additional parenting responsibilities.
In Archie’s situation, this means he would not need to ask Veronica before making day-to-day decisions for Jughead during his in-person parenting time, even though Jughead usually lives with Veronica.
This article covered some of the March 2021 Divorce Act amendments most relevant to parenting time, based on a specific fictional scenario.
If you are concerned about how the Divorce Act amendments could impact your personal circumstances, we encourage you to contact one of our lawyers for a consultation.
Please keep an eye out for more blog posts covering Divorce Act amendments soon!
David completed his J.D. at Thompson Rivers University in 2020. During law school, David volunteered with Pro Bono Students Canada on a research project examining the viability of opening mental health specialty courts in western Canada. He also had the privilege of participating in University of Alberta Law Professor Peter Sankoff’s “100 Interns” project, aimed at providing legal mentorship to students and recent graduates when the pandemic reached Canada in spring 2020.
Once Jae had finished his J.D. at the University of Saskatchewan, he knew right away to follow his entrepreneur path and to start “Shim Law” in 2014. Jae has been growing his practices ever since – specifically in the fields of Employment Law and Family Law.