Our antiquated Divorce Act was finally overhauled. The new amendments came into effect on March 1st, 2021.
One significant change is that the Act abandons the concepts of “custody” and “access”. These archaic terms had propriety connotations, leaving the impression that one parent would be the ‘winner’ of custody, and the other, the ‘loser’, afforded only the access rights of a ‘visiting parent’. These misleading terms were the source of much unnecessary litigation and got in the way of settlement because of the emotional power behind the language.
The new language of the Divorce Act speaks of “parenting orders” that allocate or schedule “parenting time”, and that allocate or share “decision-making responsibility”. Parental decision-making authority is defined to mean 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 extra-curricular activities”.
But just how significant are these amendments? I mean a rose by any other name would smell as sweet. At the end of the day, parental decision-making authority means the same as custody; and parenting time means the same thing as access. What has changed is the riddance of the negative, emotionally fuelled connotations of the old vernacular.
Arguably, however, the Divorce Act amendments encourage various forms of co-parenting—a broad social concept used by social scientists, family justice professionals and parents in many countries, premised on both parents being significantly involved in the care of children and co—operatively sharing decision-making. Co-parenting is clearly different from the traditional model of sole custody to one parent and access to the other.
One change I personally would have liked to have seen in the amendments was the inclusion of a presumption of “equal parenting”. The amendments do not go that far. Indeed, in Canada approximately three quarters of children of separated spouses continue to have their “primary residence” with one parent (usually the mother) and only a quarter of children have “equal shared parenting” (which is defined as 40% to 60% of time with each parent).