Important Changes to the Law Are Coming: Mark your calendar!(Feature Family Break-ups & the Law)

• Date: 01 November 2019
• Author: Boyd, John-Paul

Two big changes to the legislation on family law are coming next year: one that's important if you live in Alberta and another that's important if you're getting divorced no matter where you live in Canada.

Canada's Divorce Act

The federal Divorce Act applies to married couples who are separating and want to get divorced. The Act is getting a pretty thorough overhaul that takes effect on 1 July 2020. The most important changes involve the language the Act uses to talk about the care of children after separation, how the court addresses family violence and what happens when someone wants to move away after separating.

Parenting after separation

The current Divorce Act talks about the care of children in terms of custody and access. Custody is mostly about how spouses make decisions about their children. Someone with "sole custody" has the right to make these decisions without consulting the other spouse. When spouses have "joint custody", they both have the right to make these decisions and usually have to talk to each other first. Access is about how the children's time between the spouses' homes is scheduled and usually refers to the children's schedule with the spouse who has the least amount of time with them.

On 1 July 2020, however, the Divorce Act will start talking about decision-making responsibility, parenting time and contact.

Decision-making responsibility means a spouse's duty to make important decisions about their child's life, including about the child's health, education, culture, language and extracurricular activities. Under section 16.3 of the Act, decision-making responsibilities can be shared between spouses or allocated to just one spouse. Most of the time, I expect, spouses will share decision-making responsibilities. The circumstances that might justify an order for sole custody under the current Act will justify the allocation of decision-making responsibility to just one spouse.

Parenting time means the time a child is in the care of a spouse. Each spouse has the sole authority to make day-to-day decisions affecting their child during their parenting time. Contact, on the other hand, means the time someone who isn't a spouse has with a child, including grandparents and other important adults in the child's life. People with contact do not have the right to make day-to-day decisions affecting the child.

Spouses can make parenting plans describing their agreement about how they will share decision-making responsibilities and parenting time, and about who can have contact with their child. The court will make parenting orders on these subjects if spouses can't agree.

On 1 July 2020, ...the Divorce Act will start talking about decision-making responsibility, parenting time and contact.

The best interests of the child

The best interests of the child are the only consideration the court may take into account when making a parenting order, just as the best interests of the child are the only consideration when the court makes orders about custody and access under the current Divorce Act. Starting 1 July 2020, the court will have a long list of factors to take into account when...