CANADA Trends and Developments Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
Introduction In June 2019, Bill C-78 was passed in Canada, an act that amended (among other legislation) the federal Divorce Act, R.S.C. 1985, c.3 (2nd Supp) (the “Divorce Act”). The bill received Royal Assent on 21 June 2019. Most changes, and particularly those affecting the Divorce Act, came into force on 1 March 2021 (the “2021 Amendments”). The changes to the Divorce Act modified not only long-standing language but also concepts and paradigms used for decades by family law - yers, family law judges, and, to some extent, the Canadian public. The 2021 Amendments, while varied and sometimes quite specific, are collec - tively understood to have initiated a reshaping of how family law issues – particularly child-related family law issues – are practised and adjudicated in Canada. The 2021 Amendments triggered this change by renaming, and thus reframing, some of the central language and concepts in the Act. Generally, the changes can be summarised as shifting focus away from parents and adult liti - gants’ experience of the issues in question, and towards children, relationships with children, children’s best interests, and children’s experi - ences of those issues. These changes have been widely applauded insofar as they encourage a less contentious approach to family litigation. However, the application of the 2021 Amendments, and their impact on some of the older common law princi - ples that pre-date the amendments, have made the changes less linear, and more of a gradual evolution – and one that might be closer to the beginning than the end. This paper first sets out to explain the most sig - nificant parenting-related amendments to the Divorce Act, and summarises the reasons why
some of the changes were made. Second, it considers how the amendments have affected certain pre-amendment principles used in the court’s analyses in family law cases, specifically, the “maximum contact” principle, which is used as a case study to exemplify how the changes
have played out in the jurisprudence. Introduction to the Child-Related Amendments
To emphasise the child-focused nature of all parenting and decision-related inquiries – and, specifically, the importance and primacy of chil - dren’s best interests – the Divorce Act now fea - tures concepts and words that focus on relation - ships with children, such as “parenting time”, “decision-making responsibility” and “contact”, rather than on parental responsibility and author - ity, which the pre-amendment language tended towards, with words and concepts such as “pri - mary caregiver”, “access time”, “custody” and “custodial responsibility”. Details of the Child-Related Amendments The term “parenting order” replaces “custody order” throughout the Divorce Act. The term “contact order” describes an order that sets out time for children to spend with important people who are not in a parental role, such as grand - parents. These changes in language reflect an increasing recognition of diverse family struc - tures. The amendments capture the realities of blended families, families with same-sex couples, and family structures involving more than two adults with whom children spend time consistent with their best interests. This under - standing allows for a more inclusive approach to parenting arrangements, and reflects a modern view of family. This inclusivity also ensures that children maintain connections with all important adults in their lives.
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