Chapter 10: Parenting Arrangements After Divorce

• Date: 14 April 2025

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 

Parenting Arrangements After Divorce

A. INTRODUCTION

First and foremost, section 16(1) of the Divorce Act expressly provides that “[t]he court shall

take into consideration only the best interests of the child of the marriage in making a parent-

ing order or a contact order.” e best interests of the child is the only proper consideration

in determining a child’s residence, decision-making, and parenting time.1 Section 16(2) of the

Divorce Act further provides that in determining the best interests of a child of the marriage

in light of the specied factors spelled out in section 16(3), the court shall give primary con-

sideration to the child’s physical, emotional, and psychological safety, security, and well-being .2

Section 16(2) refers not only to the bare necessities of life but also to a child’s right to be raised

in a healthy home environment; family violence can rob a child of this basic need.3

Fundamental legislative changes have been implemented with respect to parenting dis-

putes that arise between divorcing and divorced parents, although many principles previously

endorsed by Canadian courts continue to be relevant.4 Many of these changes reect pre-

existing provincial legislative provisions in Alberta, British Columbia , or Nova Scotia. e

changes include:

1) replacing the traditional terminology of “custody” and “access” orders with the terminol-

ogy of “parenting orders,” which foc us on parenting time and decision-making authority,

and contact orders with respect to third parties;

 Proulx v Proulx,  ONCA  at para .

 See Zak v Zak,  ABCA  (stay of interim parenting order); Gill v Kaur,  BCSC ; AJK v JPB,

 MBQB  (ex parte order for relocation; impact of family violence); JB-S v MMS,  NBQB 

(interim order for variation of parenting time); Marshall v Snow et al,  ONSC ; Trotta v Chung,

 ONSC ; Waite v Waite,  PE SC  (relocation of child); RE v SJL,  PESC ; TK v CE,

 SKCA  (relocation of child); DM v MM,  SKQB .

 Friesen v Friesen,  SKCA  at para , leave to appeal to S CC denied  CanLII  (SCC).

 See Justice Deborah Chappel, “Not All Is New: Keeping the Tried and True Parenting Law Principles

Alive” (County of Carleton Law Association, st Annual Institute of Family Law Virtual Conference,

April , Ottawa).

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Parenting Arrangements After Divorce 453

2) establishing a non-exhaustive list of criteria to assist courts in determining the “best

interests of the child”;

3) calling upon prospective litigants and their lawyers to address the feasibility of using

out-of-court family dispute resolution services;

4) introducing me asures to assist courts in addressing family violence; and

5) establishing a framework for situations where one of the parents wishes to relocate a

child of the marriage.

Corresponding changes can now be found in provincial legislation.5

At the outset of the following analysis, it is vital to identify the following denitions

under section 2(1) of the current Divorce Act:

contact order means an order made under subsection 16.5(1).6

A “contact order” species the time that children will spend with non-parental important

individuals in their lives, such as grandparents.

decision-making responsibility means the responsibility for making signicant decisions

about a child’s well-being, including in respect of

(a) health;7

(b) education;

(c) culture, language, religion and spirituality; and

(d) signicant extra-curricular activities.8

e word “including” signies that the specied list is not comprehensive. When deciding

the issue of the nal decision-maker, a court must apply the best interests of the child.9

family dispute resolution process means a process outside of court that is used by partie s

to a family law dispute to attempt to resolve any matters in dispute, including negotiation,

mediation, and collaborative law.

e term is used in the context of parenting orders and the statutory duties of the parties

and their legal advisers.10 Here again, the word “including” signies that the specied list is

 Se e Chapter , Section E: Parenting Disputes Under Provincial and Territor ial Legislation.

 As to the inclusion of an interim order, see Divorce Act, s ().

 As to parental decision-making w ith respect to a child’s vaccination against COVID-, see Sembaliukv

Sembaliuk,  ABQB ; Spencer v Spencer,  ONSC  (interim motion); Droit de la famille —

212444,  QCCS  (CS). As to the right of children to consent to vaccination, see Nykolyshyn v

Dalton,  ABKB ; Saint-Phard v Saint-Phard,  ONSC ; MM v WAK,  ONSC .

As to the scope of judicial notice relating to the pandemic, the risk it poses to children, and the safety

and ecacy of the vaccines, see Inglis v Inglis,  SKCA  at paras –, oll JA; see also Irw in

v Manley,  BCSC , citing Steiner v Mazzotta,  BCSC ; KB c KDB,  CanLII 

(NBCA); JN v CG,  ONCA , leave to appeal to SCC denied   CanLII  (SCC); AV v CV,

 ONSC ; PR v SR,  PESC ; OMS v EJS,  SKCA .

 As to de cision-making responsibilities with respect to extracurricular activities, see JS v AS,  NBQB

 at para , citing JAP v MJP,  MBQB .

 See Nurse v Holden,  NSSC  at paras –.

 Leinwand v Brown,  ONSC .

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454   

not comprehensive so it would include, for example, parenting coordination, med-arb, and

arbitration.11

family justice services means public or private serv ices intended to help persons deal with

issues arising from separation or divorce.

ese would include parental education, counselling, and mediation services.

family member includes a member of the household of a child of the marriage or of a spouse

or former spouse as well as a dating partner of a spouse or former spouse who particip ate s

in the activities of the household.

is denition is of particular relevance in the context of family violence. To determine the

best interests of a child, a court must consider violence involving the people who are in the

child’s family or in a family-like relationship with the child. is includes people in the child’s

household, in the household of one of the spouses and dating partners who participate in

the activities of the household.

family violence means any conduct, whether or not the conduct constitutes a criminal

oence, by a family member towards another family member, that is violent or threatening

or that constitutes a pattern of coercive and controlling behaviour or that causes that other

family member to fear for their own safety or for that of another person — and, in the case of

a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced connement but excluding the use of reasonable force

to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessities of life;

(f) psychological abuse;12

(g) nancial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

is evidence-based denition recognizes that family violence takes many forms and that

it can cause signicant harm to both victims and witnesses. It does not have to constitute a

criminal oence or meet the criminal standard of “proof beyond a reasonable doubt” in order

for it to be considered family violence under the Divorce Act.13 Family violence may include

harassment as well as psychological abuse.14 e broad denition of family violence includes

indirect violence towards the children resulting from their exposure to inter-spousal violence.15

 See Chapter .

 See CMD v ST,  MBQB  (disclosure of intimate images).

 See Abaza v Adam,  ONSC  at para ; SVG v VG,  ONSC . As to short-term sealing

orders, without notice hearings, and the initializing of a le, see AJK v JPB,   MBQB .

 LLL v ST,  BCSC ; Evans v Evans,  ONSC  at para , Masden J; SVG v VG, 

ONSC  at para .

 AJK v JPB,  MBQB , citing McBennett v Danis,  ONSC ; ALF v CDF,  NBKB ;

B(R) v C(A),  NWTSC .

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