New terminology
The modifications made to the Divorce Act, change the well established terminology: “child custody”, “access rights” are abandoned in favor of “parenting time”, “parenting and contact orders” and “decision-making responsibility.”
Parenting time now will be a period (however short) when a person is primarily responsible for the child. This would include the situations when the child is not with the parent, but somewhere else, like school or daycare.
Decision-making responsibility includes making decisions about the child’s health, education, culture, language, religion and spirituality, extra-curricular activities, etc. Important to notice, that the decision-making responsibility is supposed to be exercised in the best interest of the child, so it’s not just “power.” A parent upon whom the Court has assigned this responsibility will make decisions about undergoing medical procedures, choice of school, attending a church (and what church in which confession).
Parenting order
An order assigning parenting time and decision-making responsibility is a “parenting order” now. Spouses who are parents or stand in place of a parent (including those intending to stand in place of a parent) can apply for a parenting order. If a non-spousal parent or a grandparent wants to apply for such an order, a leave (permission) from the Court should be obtain first. This filter is put there because parenting orders are usually dealt with in the course of divorce proceedings, and adding another party would complicate things.
A parenting order allocates parenting time and decision-making responsibility between the spouses. Those might be given to either spouse, to both spouses, to a person other than a spouse but a parent, or standing in place or intending to stand in place, or to any combination of those persons. The criterion is usual: best interest of the child. A parenting order may also contain requirements about communication about the child and another spouse (who is not parenting at this particular time) — ways, time and frequency. The idea is to maintain relationship between the child and the other parent. The Court might add anything else, which it would see appropriate.
If the Court sees that the spouses maintain healthy and peaceful relationship with little chance of confusion or conflict about parenting time, the Court may decide not to set any particular schedule — to promote flexibility. Otherwise, the Court will put a schedule in place to ensure stability and predictability for the child.
Parents during their parenting time can make everyday decisions exclusively: what to eat, when to go to bed, what to wear, etc. In case of a potential conflict the Court might impose specific decisions, though. The non-parenting spouse still has a right to receive information about the child’s well-being, health and education — not only from the parenting spouse, but also from the third parties (subject to provincial rules of confidentiality) — doctors, teachers, etc. This right may be limited by the Court.
The Court might also include some conditions, like counselling for a child, prohibiting relocation or removal of a child from a specific geographic area (to prevent child abduction), supervision during the child transferring from one parent to another.
Contact order
An order, allowing some persons (other than parents — like grandparents, uncles and aunts and other significant adults in general) to see the child, is a “contact order.” Non-parents should normally apply for this order.
A contact order provides for visits or other ways of communication of a person with the child in question. Such an order may be given for a specific term or indefinitely, may impose conditions and restrictions (for example, requiring that one of the parents be at home during visits), supervision, prohibition on removal from a specific geographic area.
Usually there should be a leave (permission) from the Court for an application for a contact order. The leave will be granted depending on the strength of the child’s relationship with the applying adult. Basically the Court would see if those contact would occur in a normal situation.
Parenting and contact orders include interim orders and variation (modification) orders.
One of the reasons to make such a change is to bring the Canadian Divorce Act closer to the wording of the 1996 Convention on child protection, which Canada has signed but do not enforce yet. Uniformity of the text will facilitate working with foreign judgements, orders and agreements.
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances of COVID-19 the date was changed to March 1, 2021. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected].
Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously and with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
