CANADA Trends and Developments Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
The term “access” is no longer used in the Divorce Act. Instead, to emphasise the best interests of the child, the Divorce Act features concepts that emphasise children and relation - ships with children, such as “parenting”, “par - enting time” and “contact”. The old concepts of “primary caregiver”, “custodial parent” and “access parent” implied control or ownership of a child (or the lack thereof), and consequently left parents with more interpersonal conflict and controversy on account of a “win-loss” paradigm. The new terms are intended to pro - mote respect between all adults involved with the child and are intended to be child-centred rather than parent-centred. Indeed, the language is deliberately neutral rather than loaded with implications. Similarly, a new section was added to the Divorce Act to deal with “decision-making responsibility”. Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of health, education, culture, language, religion and spirituality, and significant extracur - ricular activities. Prior to the amendments to the Divorce Act, “custody” was the term used to describe decision-making responsibility, with the specific categories of major decision-making often referred to in the jurisprudence as “heads of custody”. Whereas the old language was once again laden with “win-loss” dynamics and false assumptions, the new language captures more clearly the purpose of the responsibilities at issue and authorises a court to assign respon - sibility for making significant decisions about a child’s life. The Divorce Act has also been amended to include an explicit clause providing that any per - son to whom parenting time or decision-making responsibility has been allocated in respect of a
child or who has contact with that child under a contact order shall exercise that time, respon - sibility or contact in a manner that is consistent with the best interests of the child. This amend - ment reminds parties of their obligations and the purpose of the determinations governed by the Divorce Act. By way of example, when a parent exercises decision-making responsibility about a child’s education, the emphasis is not on the parent’s right to decide, but rather on making the decision that is in the best interests of the child. Similarly, the Divorce Act also includes new lan - guage providing that any party to a proceed - ing under the Divorce Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding. This amendment requires parties – to the extent pos - sible – to shield children from conflict related to issues being decided under the Divorce Act. This amendment was made on account of research that indicates that children’s well-being suffers if they are exposed to conflict between parents during and after a separation or divorce. In the best interests of children, parents must try to shield children from conflict as much as pos - sible. A new section, titled “Best Interests of the Child”, was added to the Divorce Act. This new section specifically requires courts to consider only the best interests of the child in decisions about parenting and contact orders. This is not to say that courts did not previously consider the best interests when arriving at decisions. Courts have long focused on the best interests of the child in decisions about parenting, and this test is also found in provincial and territorial family law legislation, and in the United Nations Convention on the Rights of the Child. However, the amendments included more detailed and, in some cases, new criteria to be considered when
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