The new Divorce act came into effect on March 1st, 2021 and puts the interests of the child and family violence and its impacts in the limelight. The terminology «custody» and «access rights» have yielded their place to the terms parental arrangements. Below here are the major changes to the law.
From here on out, an additional protection is provided to the persons subject to orders giving them the right to exert parental responsibilities (from sharing the time of the children to decisional responsibilities) or contacts preventing one of the parents to unilaterally decide to relocate, putting the other parent, or any other person (like grandparents) before the done deed. The parent that intends to make a distant relocation must now provide a notice including new parental agreements or new contacts. This notice must, among other information, include the date and new address of the relocation. The notice must be provided at least 60 days before the relocation is scheduled. The other person has 30 days to fill out the form opposing a distant relocation OR if an opposition to a distant relocation has already been deposited at the court, the parent cannot relocate with the children until the court issues an order authorizing the relocation. If no opposition to the relocation is received within the 30 days following the notice, the parent may move with the child unless there is a court order stating otherwise.
Here is the link to the form for a distant relocation: https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html and here is the link for the form opposing a distant relocation: https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html
From now on, the Divorce act dictates that, to determine the interest of a child, the court must take into consideration the violence exerted upon the child’s surroundings, whether it be psychological or physical. It is now clear that exposing a child to direct or indirect violence is recognized as family violence and child abuse. The law defines family violence as follows (paragraph 1 (7) of the Divorce act):
Means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property;
The parental plan
The new Divorce act now allows the possibility for parents to transmit a parental plan, the law considering that the parents are in the best position to determine what is in the best interest of the children. The main goal is to have the parents agree via the parental plan to prevent, as much as possible, the need for court services. The main elements stated in the suggested parental plan are the following:
- Taking decisions concerning the children.
- The children’s time spent with each parent.
- Exchange of information and communications concerning the children.
- Appointments and other practical arrangements concerning the children.
- Resolving of issues.
- Revision, monitoring and modification of the parental plan.
Here is the link to the tool for a parental plan: https://www.justice.gc.ca/eng/fl-df/parent/plan.html
Finally, the Divorce act is clear in the fact that the parties must seriously consider the use of all family issue solving services before submitting any request to the court. The judiciary system, as well as being costly, often makes the children (and thereby their parents and surroundings) victims of the process. The irony is that, often, the request stems from the good intention to protect the children, but exhaustion, the many irritants and the stress often render the children collateral victims of the process.
Text written by Me Roxane Trudel-Pigeon