Parenting Arrangements After Divorce

• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

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Chapter 10

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 parenting order or a contact order.”2 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 specif‌ied factors spelled out in section

16(3), the court shall give primary consideration to the child’s physical, emo-

tional, and psychological safety, security, and well-being.3

1 The authors wish to express their thanks to Claire Farid and Martha Butler of the

Federal Department of Justice for providing useful insights on the recent legislative

changes incorporated in this chapter. They also thank Anushua Nag, Parliamentary

Research Assistant at the Senate of Canada. See also Ann Wilton, Gary S. Joseph &

Tara Train, Parenting Law and Practice in Canada (Toronto: Thomson Reuters, 2020–).

2 See below, Section H. And see John Eekelaar, “Do Parents Know Best?” The Inter-

national Journal of Children’s Rights 28(3): 613–31, August 2020, online:

www.researchgate.net/publication/346733966_Do_Parents_Know_Best. This article,

by one of England’s foremost experts on family law, argues that there are inherent

risks in leaving the arrangements for children of separating parents entirely in the

hands of the parents, and considers various ways in which such risks might be reduced.

3 See Zak v Zak, 2021 ABCA 131 (stay of interim parenting order); AM v GM, 2018 BCSC

942 (applying s 37(3) of the Family Law Act, SBC 2011, c 25); JB-S v MMS, 2021 NBQB

96 (interim order for variation of parenting time); Van Ruyven v Van Ruyven, 2021

ONSC 5963; Waite v Waite, 2021 PESC 12 (relocation of child); Bell v Reinhardt, 2021

ONSC 3352 (parenting time order); TK v CE, 2021 SKCA 138 (relocation of child).

Chapter 10: Parenting Arrangements After Divorce 565

Fundamental legislative changes have been implemented with respect

to parenting disputes that arise between divorcing and divorced parents.4

Many of these changes ref‌lect pre-existing provincial legislative provisions in

Alberta, British Columbia, or Nova Scotia. e changes include:

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

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

time and decision-making authority, and contact orders with respect to

third parties;

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

ing the “best interests of the child”;

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

ibility of using out-of-court family dispute resolution services;5

iv) introducing measures to assist courts in addressing family violence; and

v) establishing a framework for situations where one of the parents wishes

to relocate a child of the marriage.

Speaking to the issue of family violence during the second reading of Bill

C-78, now SC 2019, c 16,6 which implemented the recent legislative changes,

the Minister of Justice stated:

Bill C-78 includes three amendments to address family violence in the

Divorce Act and one in the Family Orders and Agreements Enforcement Assist-

ance Act.

First, we have proposed an evidence-based def‌inition of family violence

in the Divorce Act that highlights common indicators of abusive behaviour.

Coercive and controlling behaviour, which is known to be particularly dan-

gerous, is highlighted.

4 See Presentation of Department of Justice, Claire Farid, Marie-Josée Poirier & Andina

van Isschot, “Divorce Act Amendments” 29th Annual Family Law Conference, Part 1,

County of Carleton Law Association, Ottawa, 1 October 2020. See also John-Paul Boyd,

“New Duties for Lawyers and Parents and How Lawyers Can Diminish Conf‌lict” 29th

Annual Family Law Conference, Part 2, County of Carleton Law Association, Ottawa,

16 October 2020; Professor Nicholas Bala, Parenting Plans, 29th Annual Family Law

Conference, Part 2, County of Carleton Law Association, Ottawa, 16 October 2020.

And see Nicholas Bala, “Bill C-78: The 2020 Reforms to the Parenting Provisions of

Canada’s Divorce Act” 39 CFLQ 47–76; Leinwand v Brown, 2021 ONSC 6866.

5 As to dispute resolution resources available in the Lower Mainland of British Colum-

bia for parties in family disputes, see the agencies listed by Kent J, of the Supreme

Court of British Columbia, in Appendix A to Sadana v Sadana, 2021 BCSC 111.

6 Bill C-78 (now SC 2019 c 16) received Royal assent on 21 June 2019. Most of its diverse

provisions came into eect on 1 July 2020, see “The Divorce Act Changes Explained”

online: Dept of Justice, Canada www.justice.gc.ca/eng/f‌l-df/cf‌l-mdf/dace-clde/

index.html.

Canadian family law566

Second, we have proposed a distinct set of best interests of the child cri-

teria to help courts make appropriate parenting orders when there has been

family violence. ese include considerat ions such as the nature, serious-

ness and frequency of violence.

ird, we have a provision that would require courts to consider whether

there are any child protection or criminal orders or any other proceedings

that could inf‌luence an order under the Divorce Act. is provision would

help prevent conf‌licts between courts, such as a family law order that gives a

parent time with a child in a manner that conf‌licts with a criminal restrain-

ing order.

Finally, we have proposed an amendment to the Family Orders and

Agreements Enforcement Assistance Act that would restrict the sharing of

personal information in situations of family violence where a family mem-

ber’s safety may be at risk. Together, these measures would help courts bet-

ter address family violence at a time when family members are particularly

vulnerable, and help prevent family violence as families adjust to their new

post-separation arrangements.7

Corresponding changes can now be found in provincial legislation.8

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

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

contact order means an order made under subsection 16.5(1).9

A “contact order ” specif‌ies the time that children will spend with non-par-

ental important individuals in their lives, such as grandparents.

decision-making responsibility means the responsibility for making signif‌i-

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

(a) health;10

(b) education;

7 As to the intersection of criminal law and family law in cases involving family vio-

lence, see R v SSM, 2018 ONSC 4465

8 See Chapter 12, E. Parenting Disputes Under Provincial and Territorial Legislation.

9 As to the inclusion of an interim order, see Divorce Act, s 16(7).

10 As to parental decision-making with respect to a child’s vaccination against COVID-

19, see TRB v KWPB, 2021 ABQB 997; Sembaliuk v Sembaliuk, 2022 ABQB 62; TLM v

JTM, 2022 ABQB 109; McDonald v Oates, 2022 ONSC 394; Droit de la famille — 211637,

2021 QCCS 3582; Family Law — 212222, 2021 QCCS 4862; Droit de la famille — 212444, 2021

QCCS 5387 (CS); OMS v EJS, 2021 SKQB 243. As to the right of children to consent to

vaccination, see AC v LL, 2021 ONSC 6530; compare BCJB v E-RRR, 2021 ONSC 6294;

Saint-Phard v Saint-Phard, 2021 ONSC 6910. As to judicial notice re vaccination against

COVID-19, see PR v SR, 2022 PESC 7.