“On March 1, 2021, important amendments to the Divorce Act (the Act) came into force. These amendments are applicable in this case because s. 35.3 of the Act expressly states that the amendments to that legislation will apply to any case decided on or after March 1, 2021 (even if the case was started but not determined before March 1, 2021). Section 35.3 says:
PROCEEDINGS COMMENCED BEFORE COMING INTO FORCE – A proceeding commenced under this Act before the day on which this section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day.
Although the amendments were originally scheduled to take effect last year, it was delayed because of the COVID-19 pandemic. All of this came into force as of March 1, 2021 and therefore I must and shall use and apply that language in this decision. The amendments changed and modernized the language in the Act in many ways to remove any reference to the terms like “custody” or “access” for children. These terms were replaced with terminology focused on parent’s responsibilities for their children, with the goal of helping to reduce parental conflict. The Act introduced some new terminology relating to “parenting orders”, “parenting time” and “decision-making responsibility”, and further added other terms and definitions including “family dispute resolution process”, “family justice services”, “family member” and “family violence”. Similar changes were also made to provincial statutes like the Children’s Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (also coming into force on March 1, 2020). In my view, these changes are very welcome to the family court and it is my hope they will do exactly what they were intended to do, which is to help reduce parental conflict (in the best interests of children).
Section 2 of the Divorce Act provides definitions for some of the new terminology. The definition of “custody” and “custody order” were repealed. Now, instead of making a custody order, the courts will now make a “parenting order” pursuant to s. 16.1 (1) of the Act. In the parenting orders, the court may, among other things: allocate parenting time and day-to-day decisions (in accordance with s. 16.2 of the Act; allocate decision making responsibility (in accordance with s. 16.3 of the Act); and requirements regarding communication between the persons that have been allocated parenting time.
Under the Act, a parenting order would be available to either or both spouses; or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent. Parenting tim may be allocated by way of a schedule and unless the court orders otherwise, the parent who has been allocated parenting time has exclusive authority to make the day-to-day decisions affecting the child when the child in in their care. This would include time when the child is not physically in the care of that person, such as when the child is at school or in daycare. If there is a particular issue that would normally be a day-to-day decision, but it is of certain significance to a particular child, it could provide for any other matter that the court considers appropriate. The amendments preserved the principle that a child should spend as much time with each parent so long as it is consistent with the best interests of the child. The “maximum contact principle” is now the “maximum parenting time” principle. It is important to note that above all else, this principle is subject to the “primary consideration” that the court must consider a child’s physical, emotional and psychological safety, security and well-being. This is especially significant in cases of family violence. Lastly, none of the above creates a presumption of equal time because if the contact conflicts with the best interests of the child, the court may impose restrictions.”