An amendment to the Divorce Act came into force on March 1, 2021, and was designed to focus on relationships with children and their best interests.
The amendment adopts new language in defining parenting arrangements and contact with a non-spouse (such as a grandparent).
In accordance with the amendment, the terms “custody” and “access” have been removed from the Act and replaced with “decision-making responsibility” and “parenting time.” The term “contact” relates to the time carved out in a child’s schedule for a non-spouse (such as a grandparent) with a child.
Decision-Making Responsibility/Parenting Time (formerly known as “custody” and “access”)
“Decision-making responsibility” relates to the major decisions that parents must make on behalf of their children.
Decisions around the health and wellbeing of the child, educational choices and religious upbringing are examples of key decisions that parents with decision-making responsibility must make.
The changes to the Divorce Act have now rectified the previous misconceptions about the word “custody,” which many erroneously understood as involving only the physical care of a child.
“Parenting time” refers to the residential arrangements for a child and the period during which a child spends in the care of a parent, whether or not the child is physically with that person during that entire time (i.e., when the child is in school or daycare).
Parents may agree to allocate parenting time by way of a parenting or residential schedule. The parenting time may be shared on an equal basis, or one parent may have more time with the child than the other parent.
It is important to keep in mind that in allocating parenting time, the Divorce Act contemplates that “the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”
In a shared decision-making arrangement, each parent has equal rights to decision-making. This is an arrangement that requires cooperation between parents and an ability to continually interact, communicate with each other and make decisions jointly in the best interests of the children.
A shared decision-making arrangement works to create strong bonds between the parents and the children.
It is important to note that when deciding on whether parents should share decision-making responsibility and parenting time, the court will give primary consideration to the best interests of the children (which takes into account the children’s physical, emotional and psychological safety, security and wellbeing).
Decision-Making Allocated to One Parent
In situations involving conflict, where the parental relationship is strained, one parent is undermining the relationship between the other parent and the child and there is no communication or cooperation, a court may grant sole decision-making authority to one parent. There must be factual evidence in support of this claim.
Once again, the court will give primary consideration to the best interests of the children and consider factors such as family violence when making their decision.