All Canadian divorcing families are now subject to the new amendments to the Divorce Act which came into effect on March 1, 2021.
Most family law lawyers are delighted with the changes to the Divorce Act. I will break down some of the changes in small parts through a series of blog articles.
Contrary to provincial and territorial legislation (that apply to unmarried couples), the old Divorce Act (which applies to married couples) did not include a list of factors for courts to consider in determining what is in the best interests of a child. Now it does.
Parents and Family Law Professionals (judges, lawyers, mediators, parenting specialists) will now be guided by the non-exhaustive list of criteria that define the best interests of the child.
Below are excerpts of information found on the Justice Canada web site which explain these new items well.
2. Best interests criteria (Clause 12)
In addition to a list of criteria, the [Divorce Act changes] identify a “primary consideration.” The primary consideration specifies that a child’s safety, security and well-being are the most important factors to consider. In some cases, there may be conflicts between two or more of the enumerated best interests of the child criteria. The primary consideration will help to resolve any such conflicts by stressing that the child’s safety, security and well-being must always come first. …
The list of best interests criteria is a non-exhaustive list. Parents and courts could therefore consider factors that are relevant to the circumstances of a particular child even if such factors do not appear on the list. The list does not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion is determinative, and the weighting for each criterion depends on the circumstances of the particular child. The remainder of this section includes descriptions of each of the best interests of the child criteria.
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
This criterion emphasizes the need to focus on the individual circumstances of each child. For example, a child’s temperament can influence their ability to respond to change and may affect the parenting style they require. If the child has any special physical or psychological needs, such as a physical disability, this may be important for the court to consider. This criterion recognizes that each child experiences their parents’ divorce or separation in unique ways.
A child’s needs also change over time. A child’s stage of development influences their reaction to any situation. For example, most infants require more predictability in their schedules and routines than adolescents do. This factor takes these types of developmental issues into account.
b. The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons
Courts generally consider the nature of the relationship that existed during the marriage between the child and each parent when determining parenting arrangements. Many judicial decisions and family assessment reports begin by reviewing the relationship the child has had with each parent.
Children can also have important relationships with siblings, grandparents and other extended family members. These relationships can provide stability at a time of substantial change in the child’s life. This factor requires consideration of the importance of children’s ongoing contact with existing extended family members, such as grandparents. This contact will primarily take place through the parenting time of the spouses, although in some cases, a contact order may be necessary.
c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
A child’s relationship with each parent is important, and it is generally important for each parent to support the child’s relationship with the other parent. Maintaining a positive relationship with both parents provides stability for a child when they are going through a significant life change, their parent’s separation. This provision reflects the “friendly parent rule” currently contained in subsections 16(10) and 17(9) of the Divorce Act.
If a parent actively attempts to undermine their child’s relationship with the other parent, courts may need to consider this in making a parenting order.
In certain situations, it may be inappropriate for one parent to facilitate a child’s relationship with the other parent, for example, in some situations of family violence where there is a safety concern. As a result, this provision is included in the list of best interests criteria where a court can consider it along with other factors relevant to the child’s welfare, keeping in mind the primary consideration relating to the child’s safety, security, and well-being.
d. The history of care of the child
In assessing the potential roles that individuals can play in a child’s upbringing after the parents’ divorce, courts may need to consider the roles these individuals played before the divorce. A party’s knowledge of and ability to cope with a child’s daily routine are an important part of their ability to provide ongoing daily care to that child. The history of the child’s relationship with each individual applying for an order also relates to the issue of stability for the child, which includes the concept of continuity of care.
e. The child’s views and preferences
Canada is a party to the United Nations Convention on the Rights of the Child. Article 12 of this Convention provides that governments should recognize that children who are capable of forming their own views, depending on their age or maturity, have the right to participate in decisions that affect their lives. Children are directly affected by the parenting decisions that parents and judges make about them. This factor requires consideration of children’s views on issues that are important to them. It also directs that courts and parents give weight to the child’s views in accordance with the child’s age and maturity.
f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
In determining parenting arrangements, courts often consider the relevance of a child’s culture, language, religion and spirituality. Depending on the circumstances of the child, a child’s culture or religion may provide an added support system for the child. Children’s best interests are generally furthered when they can learn not only from formal education but also through experience and observation. The potential for a child to develop their own cultural identity and positive self-esteem may be important factors for the courts to consider. A parent’s ability to maintain and promote a child’s comprehension of and link to the child’s cultural, linguistic and religious heritage is one consideration with respect to a child’s overall well-being.
As is consistent with child protection legislation in several provinces, this criterion specifically directs that consideration be given to a child’s Indigenous heritage, if applicable.
g. Any plans for the child’s care
Parents are generally best placed to identify what is best for their children. The … changes to the Divorce Act aim to encourage parents to develop parenting arrangements with as little court intervention as possible. In determining the best interests of the child, a court may consider how parents plan to care for their children post-divorce.
One tool that some parents, mediators and lawyers use to help determine how parents will share responsibilities following separation and divorce is a “parenting plan.” If parties agree to a parenting plan, new section 16.8 will require a court to include its provisions in a parenting or contact order, as applicable, unless it is not in the best interests of the child.
Parenting plans are one way that parents can express their views about parenting post-divorce, but this criterion could include other ways for parents to describe plans for their children’s care and upbringing, such as pleadings or affidavits.
h.The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
Some parents may be unable or unwilling to meet their responsibilities due to certain limitations. These limitations may raise real concerns for the child’s health, safety and well-being. This criterion will help to ensure that courts consider parenting ability and willingness in the assessment of a child’s best interests.
The criterion does not focus simply on the past, but also on the present and future ability and willingness to care for and meet the needs of the child. Courts will be required to consider an applicant’s strengths and limitations when determining parenting arrangements or contact orders.
i. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate
Children benefit when parents are able to cooperate and communicate. Courts need to assess parents’ ability and willingness to work together, as this will influence the type of parenting arrangements that may be considered. Parents who are able to cooperate and communicate are more likely to successfully share decision-making responsibilities. They are also more likely to be able to manage flexible parenting arrangements that set out relatively few details.
Flexible arrangements may not be workable for parents unable or unwilling to cooperate or communicate well with each other. When parents are not able or willing to cooperate or communicate effectively, children may find themselves in the middle of their parents’ disputes. These parents may need more detailed agreements or orders clearly specifying the arrangements for the children.
j. Any family violence
This will be the subject of a separate article.
k. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
The federal government web site offers tools to help parents build a parenting plan. In addition, mediation and collaborative negotiation are great legal separation processes to assist parents create appropriate parenting plans after separation.