Parenting Arrangements after Divorce

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 548-622

548

Chapt er 10

Parenting Arrangements After

Divorce

Note: Chapter 10 of Canadian Family Law, 8e, provides a detailed descript ion of these

legislative changes relating to parenting disputes, and the authors venture their opinion

concerning the ongoing impact of judic ial rulings under the former statutor y regime. Addi-

tional changes, prima rily of a jurisdictional nat ure, are also included in the amending legis-

lation. ose juri sdictional changes that are scheduled to come into force on 1 March 2021

are examined in Chapter 7 of Canadian Family Law, 8e. Because Chapter 10 of Canadian

Famil y Law, 8e, is conned to discussing leg islative changes that will not come into force

until 1 March 2021, Irwin Law will provide electronic access to Chapter 10 of Canadian

Family Law, 7e, which denes the governing legal criteria until 1 March 2021. Although

courts cannot give eec t to the aforementioned legislative changes with respe ct to parent-

ing and contact orders before 1 March 2021, lawyers and mediators who are engaged in

assisting divorcing or divorced par ties to resolve parenting disputes are not subject to the

same rigid const raint and they may look to the amending legislation for insights into th e

drafting of appropria te settlements. And because the jurisdict ional analysis in Chapter 7

of Canadian Family Law, 8e, will also be inoperative before 1 March 2021, Ir win Law will

provide electronic access to the relevant pa ges (179–191) in Chapter 7 of Canadian Family

Law, 7e, which dene the governing juri sdictional criteria unt il 1March 2021.

A. INTRODUCTION1

First and foremost, section 16(1) of the Divorce Act expressly provides that

“[t]he court shall take into considerat ion only the best interests of the child of

the marri age in making a parenting order or a contact order.”2

1 e authors wish to e xpress their th anks to Cla ire Farid and Mart ha Butler of the feder al

departme nt of justice for providi ng useful insi ghts on the recent legis lative changes

incorporated i n this chapter. ey a lso thank Anu shua Nag, Parlia mentary Resea rch

Assista nt at the Senate of Canad a.

2 See below, Section H.

Chapter 10: Parenting Arrangements After Divorce549

Fundamental legislative changes have been implemented with respect

to parenting disputes that arise between divorcing and divorced parents.3

Many of these changes reect pre-existing provincial legislative provisions

in Albert a, British Columbia, or Nova Scotia. e cha nges include:

i) replacing the traditional terminology of “custody” and “access” orders

with the terminology of “parenting orders,” which focus on parenting

time and decision-making authorit y, and contact orders with respect to

third pa rties;

ii) establishing a non- exhaustive list of criteri a to assist courts in determin-

ing the “best i nterests of the child”;

iii) calling upon prospective litigants and their lawyers to address the feas-

ibility of using out-of- court family dispute resolution serv ices;

iv) introducing measures to a ssist courts in addressing fami ly violence; and

v) establ ishing a framework for situations where one of the parents w ishes

to relocate a child of the m arriage.

Speaking to the i ssue of family violence during t he second reading of Bill

C-78, now SC 2019, c 16,4 which implemented the recent legislative changes,

the Minister of Justice st ated:

Bill C-78 include s three amendments to add ress family viole nce in the Divorce

Act and one in the Family Orders and Ag reements Enforcement Assistance Ac t.5

At the outset of the following a nalysis, it is vital to identi fy the following

denitions under sect ion 2(1) of the current Divorce Ac t:

“Contact order” me ans an order made under subsect ion 16.5(1).6

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

ental importa nt individuals in their lives, s uch 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; (b) education; (c) cultu re, language, rel igion and spiritu ality; and

(d)signicant e xtra-curr icular activit ies.

3 Se e Nicholas Bala, “ Bill C-78: e 2020 Refor ms to the Parenting Pro visions of Canad a’s

Divorce Act” 39 CFLQ 4 7–76.

4 B ill C-78 (now SC 2019 c 16) received Roy al assent on 21 June 2019. Most of it s diverse

provisions c ame into eect on 1 July 2020, se e “e Divorce Act Changes E xplained ”

online: Dept of Ju stice, Canada www.justice.gc.ca/eng/-df/c-mdf/dace-clde/index.html.

5 As t o the intersection of cr iminal law a nd family law in ca ses involving fam ily violence,

see R v SSM, 2018 ONSC 4 465

6 As to the i nclusion of an interi m order, see Divorce Act, s 16(7).

Canadi an family law550

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 .7

“Family di spute resolution process” means a process outside of cou rt that is

used by part ies to a family law dispute to at tempt to resolve any matters in

dispute, includ ing negotiation, mediation a nd collaborative law.

e term is used in the context of parenting orders and the statutory dut-

ies of the parties and their legal advisers. Here again, the word “including”

signies that the specied list is not comprehensive so it would include, for

example, parenting co -ordination, med-arb, and arbitration.8

“Family justice services” means public or private services intended to help

persons deal w ith issues arising f rom separation or divorce.

ese would include parenta l education, counselling, and med iation services.

“Family member ” includes a member of the household of a chi ld of the mar-

riage or of a spouse or for mer spouse as well as a d ating partner of a spou se

or former spouse who pa rticipates in the activ ities 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 rela-

tionship with the c hild. is includes people in the chi ld’s household, in the

household of one of the spouses and dating partners who par ticipate in the

activities of the house hold.

“Family violence” means any conduct, whether or not the conduct consti-

tutes a crim inal oence, by a family me mber towards another fami ly mem-

ber, that is violent or th reatening or that constitutes a patter n 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 d irect 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)harass-

ment, including stalking; (e)the failure to provide the necessaries of life;

(f)psychological abuse; (g)nancial abuse; (h)threats to kill or harm an

7 See Nurse v Holden, 2019 NSSC 358 at paras 89 –92.

8 See Chapte r 6.