Canada’s federal 1986 Divorce Act applies to married couples who are separating and want to get divorced. It’s getting a major overhaul that comes into law on July 1, 2020. I am a California divorce mediator but there is much in Canada’s new divorce law that is wise and worth noting, particularly as regards co-parenting.
The current law talks about the care of children after separation in terms of “custody” and “access”. This is similar to “custody” and “visitation” in California law. The updated law replaces these terms with “decision-making responsibility” and “parenting time.” The more neutral wording is intended to discourage parents from the idea of a “winner” and a “loser” in decisions about parenting arrangements.
Spouses are encouraged but are not required to make parenting plans. These plans can describe how they will share decision-making responsibilities and parenting time. The court will make parenting orders on these subjects if spouses can’t agree. The court should order as much time with each parent as is consistent with the best interests of the child. There’s no presumption that 50/50 or any other parenting time scheme is best.
Best Interests of the Child
The best interests of the child are the only consideration for the court when making a parenting order. Starting 7/1/20, the court will have many factors to take into account when deciding what is in a child’s best interests. These include:
- the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
- the child’s views and preferences, giving due weight to the child’s age and maturity;
- the child’s cultural and linguistic upbringing;
- the ability of each spouse to care for the child;
- the child’s history of care;
- each spouse’s willingness to encourage the child’s relationship with the other spouse;
- each spouse’s ability and willingness to communicate and cooperate with each other on matters concerning the child;
- the presence of any civil or criminal court actions and orders that are relevant to the well-being of the child; and
- the presence of family violence.
When considering these factors, the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.
There are new rules about what happens when a spouse wants to move away, with or without a child. A spouse wanting to move only a short distance away will be required to give written notice to the other parent. The notice must state the date of the move and the new address.
However, it’s different if the parent wants to relocate. “Relocation” is defined as a change in the home of a child or a person with parenting time or decision-making responsibility that will have a significant impact on the child’s relationship with someone who has parenting time or decision-making responsibility or contact. For relocations, the person who wants to move must give 60 days’ notice. The notice must give the date of the move and the new address. It must also contain a proposal about how parenting time, decision-making responsibility and/or contact will work after the move.
After receiving notice of a relocation, the other parent has 30 days to object to the relocation. The relocation can happen if the court approves the move or the other parent fails to object. If the other parent objects, the court must consider the best interests of the child and a list of other factors, including:
- the reasons for the move;
- the impact of the move on the child;
- whether there is a court order or an agreement between the parents that restricts where the child can live; and
- the reasonableness of the proposal about how parenting time, decision-making responsibility and/or contact will work after the move.
Mediation and Alternative Dispute Resolution
In Canada’s updated divorce law, couples are encouraged to resolve disputes about parenting after separation, child support and spousal support out of court. Options include negotiation and mediation. Lawyers will be required to encourage their clients to resolve their disagreements outside court.
The amended law strengthens the enforcement of child support. It prioritizes family debts over all others except those owed to the federal government.