By AILIN HE, LL.B., MSc
The amendments to the federal Divorce Act came into force on March 1, 2021. The following is a summary of important changes:
1. Terminology: “custody” and “access” have been replaced with “decision making responsibility” and “parenting time”;
2. Family dispute resolution: lawyers must inform and encourage clients to participate in alternative dispute resolution, including negotiation, mediation, or Collaborative law.
3. Family violence: courts are now required to consider the impact of family violence when considering corollary relief proceedings. Family violence is defined as conduct that is violence or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes a family member to fear for that family member’s own safety or for the safety of another person. Most importantly, such behaviour includes physical abuse, sexual abuse, threats of harm, harassment, psychological abuse, and financial abuse. In the case where a child is involved, family violence captures the direct or indirect exposure of the child to such conduct.
WHAT IMPACT DO THESE HAVE ON YOU?
1. Less confusion: a common misconception that I hear from clients is that they seek sole custody because they want the children to live with them. “Custody” in family law context refers to the right and responsibility of a parent to make major decisions for the parent’s child. Major decisions include those concerning education, religion, and non-emergency health care. After I explain what “custody” really means, I always ask my clients if they really want to make all major decisions alone? The answer I get every single time is no, they wish to make decisions jointly. Therefore, with the new terminologies in place, parents will be less likely to fight over “custody”.
2. Make child focused decisions: amendment to the Divorce Act also confirmed that the best interests of the child is the only consideration when the court makes parenting or contact orders. The Act now provides a non-exhaustive list of legislated factors to apply in weighing the best interest test. The new amendments places greater emphasis on family violence and the ability and willingness of a person engaged in family violence to care for and meet the needs of the child.
3. Try to keep in-court litigation to a minimum: The new amendment now requires lawyers to inform and encourage clients to participate in alternative dispute resolution (ADR). These include mediation, arbitration, and mediation/arbitration. The use of ADR helps separated spouses to achieve a viable solution without the need of a bitter, lengthy, and expensive litigation. This would be especially beneficial to children as there will less conflict between parents.
Ailin practices in the areas of family law and litigation. She was called to the Ontario Bar in 2020 and joined Garfin Zeidenberg LLP as an associate after training with the firm. Ailin has experience in all aspects of family law including property division, support, child protection and custody matters.