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Wording Matters! Changes to the Divorce Act

On March 1, 2021, significant changes were made to the federal Divorce Act. Ontario amended its provincial legislation, the Family Law Act, and the Children’s Law Reform Act, to be consistent with the changes to the Divorce Act. The changes in the legislation impact all parents, whether married, separated, divorced, or never married.

One significant change is the adoption of new terminology. The terms “custody” and “access” have been replaced with “parental decision-making responsibility” and “parenting time”. The shift to new terminology is to steer parents away from the focus of winning and losing, as often is the case when parents dispute custody or access of the children. This new terminology is to move parents towards a more child-focused problem-solving approach.

So instead of sole or joint custody, Parenting Orders will now refer to sole, joint or divided decision-making responsibility. Decision-making responsibility encompasses those significant decisions about the child’s well-being, including health, education, culture, language, religion, spirituality and significant extra-curricular activities.

Pushing parents towards a more child-focused problem-solving approach, the Divorce Act now sets out new duties for parents. Parents must exercise their responsibilities in the best interests of the child, protect children from conflict, where appropriate try to resolve matters through family dispute resolution, provide complete and up-to-date income and asset disclosure (when appropriate) and comply with Orders that have been made until they no longer are in effect. Parents are encouraged to recognize the importance of supporting the child’s relationship with the other parent.

Other changes to the legislation include the duty for legal advisors to encourage clients to use family dispute resolution, unless it is not appropriate, for example in cases involving family violence or where there is a power imbalance between the parents. In addition to being required to inform clients about the client’s duties under the Act, lawyers are also obligated to provide their clients with information about family justice services that are available and may assist them with resolving issues or complying with an Order.

The purpose of these amendments is to encourage parents to settle disputes outside Court. 

Andrea Cooley, Family Law Lawyer, Siskinds


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