Divorce Act Amendments Custody and Decision-Making Responsibility
Wondering what are the changes proposed in the amendment to the Divorce Act of 2020 relating to the custody of children?
You heard about decision-making responsibility, parenting time and contact and wonder what they mean exactly?
We have good news for you!
In this article, we go over the Divorce Act amendments relating to the decision-making responsibilities of the parents. What used to be custody and access rights are now referred to as decision-making responsibility, parenting time and contact. What does the decision-making responsibility actually mean? We will cover that in detail!
This article is divided into the following sections:
- Objectives of The Divorce Act Amendment
- Changes To The Terms Referring to Custody
- What Does Decision-Making Responsibility Refer to?
- Decision-Making Responsibility Refers To Major Decisions
- How is decision-making allocated between parents?
- Previous Divorce Act Terminology Related to The Care of A Child
Let’s get started!
Objectives of The Divorce Act Amendment
On June 21, 2019, Bill C-78 received Royal Assent and provided for important changes to the Divorce Act to take effect as of July 1, 2020.
The amendment of the Divorce Act is an important revamping of the divorce law aligning its terms and provisions with the realities of our society today.
The purpose of this amendment is to:
- Promote the best interest of the child
- Address family violence
- Help reduce child poverty
- Make Canda’s family justice system more accessible and efficient
Changes To The Terms Referring to Custody
The wording used under the Divorce Act prior to the amendment referred to “custody” and “access rights” when referring to the care and parental responsibilities in raising a child.
The wording employed was highly parent-centric adversely impacting the parents.
The parents were led to fight for the custody as if it was a property to be won or the prized legal achievement objective in court.
The amendment to the Divorce Act repealed the terms custody and access replacing them with “decision-making responsibility”, “parenting time” and “contact”.
Article 16.3 of the Divorce Act now states:
Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.
Based on this new provision, the court can allocate decision-making responsibility to either one or more persons.
A person can be either souses or a person other than a spouse who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
As you can see, the court has a greater level of discretion in grant decision-making responsibilities to the parents or other persons who care for or intend to care for the chid.
The replacement of the terms custody and access is found upon the objective to focus the attention on the parental relationship with the child as opposed to subjecting the child to a parent in parent-focused terminology of “custody” of a parent or “access” of a parent.
What Does Decision-Making Responsibility Refer to?
Decision-making is a fundamental responsibility of the parents to make important decisions in the life of their children.
Every child needs and deserves the to have parents make the best possible decisions to give them the best chance at life.
Parents need to step in and make important decisions such as the choice of school, medical treatments, the child’s overall health, values, religion and others.
The decision-making responsibilities are essentially the ability of a parent to make important decisions in the life of their child.
In Quebec, we are already familiar with this concept when referring to parental authority.
By referring to decision-making responsibility, the person allocated with this responsibility will be the one making the important decisions about a child.
This could be both parents or one parent as the court may decide.
Decision-Making Responsibility Refers To Major Decisions
The concept of decision-making responsibility refers to major decisions related to a child, not the routine day-to-day decisions.
For example, decisions about the choice of school, doctors and religious teachings will be considered as decision-making responsibilities.
Decisions about where the child goes today, with who they play, what they eat and what time they come home will by their day-to-day decision that will be handled by the parent having parenting time.
Major decisions for a child can include:
- Choice of schools
- Extracurricular activities
- Health-related questions
- Medical treatments
- Choice of doctors
- Surgeries
- Religious teachings
How is decision-making allocated between parents?
In most cases, if the parents are able to demonstrate that they care for their child and they are able to overcome their differences for the greater good of their child, the court will grant decision-making responsibility to both parents.
In situations where the parents are unable to get along or there are unique circumstances the court can consider such as family violence and abuse, the court may allocate decision-making responsibility to only one parent.
The court’s decision must be based upon the best interest of the child.
Previously, there was a presumption that a child needs the most compatible time with each parent.
Today, the courts must consider the best interest of the child and decide what type of decision-making responsibility will lead to the greatest protection of the child’s interest.
It’s worth noting that the court will have the ability to allocate elements of decision-making responsibility to a parent.
In other words, the court can say that parents will have decision-making responsibility only with respect to cultural and religious matters.
The court must always be guided by the best interest of the child in any parenting order.
Previous Divorce Act Terminology Related to The Care of A Child
Previously, the Divorce act referred to the term custody and access rights.
It was not clear which parent had the ability to make important decisions in the life of the child.
Was it the parent with custody?
Was the parent with access right enabled to make important decisions in the life of the child or just be consulted?
The law was not clear.
The courts across Canada had developed a set of jurisprudential rules and local statutes to clarify this legal ambiguity.
Now, the law is clear.
The decision-making responsibility will be decided by the court in the best interest of the child.
If it is allocated to both parents, regardless of parenting time, then both parents are responsible to make important decisions.
If not, then the person appointed by the court will have such responsibility.
The terms custody and access rights evoked negative feelings and a custody battle typically resulted in a winner and loser mentality.
Takeaways
The Divorce Act is modernized to reflect how society requires better protection of the children in the context of a divorce and parental conflict.
The changes to the law are intended to promote the best interest of the child and coin a more appropriate term related to their care and upbringing.
The parent-focused terminology of custody and access rights have been changed to a more child-focused terminology of parental decision-making, parenting time and contact.
In the next few years to come, we will see how the courts will interpret these new concepts and align past jurisprudential teachings to the new statutory regime.
This article focused specifically on the decision-making responsibility of the parents so you can get a better understanding of this concept.
We hoped you were able to find the answers to your questions.
Our child custody lawyers are here to support you for any question or legal assistance in this regard.
Don’t hesitate to reach out to use for legal assistance and consultation.
