On March1, 2021, the new provisions of the Divorce Act came into force. These changes focus primarily on children's rights and will apply to all separating married couples with minor or dependent children.
This does not apply to civil union spouses or de facto spouses, precisely because they have not married and divorce is intended to dissolve the marriage.
However, some of these new provisions are already being put into practice by many family mediators for all types of couples. For example, the law now refers to "parental time". In mediation, asking separating parents how they want to share the child's time is less aggressive and encourages negotiation, whether they are married, in a civil union or de facto spouses. The real or perceived win/lose vision implied by the terms "custody" and "access" has thus been set aside by many mediators, who have put forward a vocabulary more likely to foster collaboration between parents.
The child's safety and physical, psychological and emotional well-being are at the heart of this reform. The law lists certain criteria for assessing them, while recognizing that there are others, and that none is decisive. These include the child's age, bonding, history of care and violence.
You've probably heard it said that shared custody (50/50) best meets the needs of children, that custody of a two-year-old toddler should be entrusted to his mother because she best meets the needs of a little one of that age, and so on. The new law rejects these overly general ideas and instead recommends a personal analysis of each child's case.
To refocus decisions on the young person's needs, the vocabulary used has also changed. We'll be talking about "parental time" and "decision-making responsibilities" rather than "custody rights".
With regard to parental responsibilities, for example, the law defines two types: the most important (decision-making responsibilities), which concern health, education, culture, language, etc., and which will be the subject of the judgment or agreement. Then there are those of lesser importance (day-to-day responsibilities), which will be exercised by the person who has parenting time while the child is with him or her, without interference from the other parent. We're talking here about supervision of homework and lessons, bedtime, feeding, household chores and so on.
The term "contact" refers to people other than parents who may be granted time with the child. For example, an agreement or judgment may provide for time with a grandparent if he or she is the most appropriate person to meet certain of the child's needs, or with the ex-lover of one of the parents who developed significant emotional ties with the child when they were living under the same roof.
What happens when one parent decides to move? Can he or she move with the child, or does the other parent have to agree? This situation was not regulated by law, but from now on, if a move has a major impact on the child's ties with the other parents, 60 days' notice of the move must be sent to the other parent, along with a proposal for a new parenting-time arrangement. The other parent will have 30 days to object to the move and, if so, it will be up to the court to issue an order authorizing or refusing the move.
Finally, the new law emphasizes the fight against violence in all its forms. To give just a few examples, from now on, parental time will also take into account the behavior of a parent's spouse, violence towards another family member or even violence towards an animal.
For more details, including the reasons behind the changes, please visit the Government of Canada website Divorce Act Amendments Explained.
Since 2017, the law has recognized amicable divorce as a non-contentious procedure, i.e. a legal procedure where there is no dispute. Ex-spouses now have a choice of professional who can help them bring their divorce to a successful conclusion. Notaries are also empowered to represent the parties in a joint request for a draft agreement, a step previously reserved for lawyers. Recognized as the lawyer of the agreement, the notary works in the field of agreement and prevention rather than conflict. The notary therefore adds considerable value to the amicable divorce process.
Divorce is never easy, and it's important to have the right people around you at this crucial stage in your life. Notaries working in the field of family law, and more specifically in the dissolution of unions, keep their knowledge up to date on the latest legal developments in the field to better advise citizens and help them make judicious choices. Do not hesitate to consult them.
Are you separating but have no dependent children? You may be entitled to three hours of mediation subsidized by the Quebec government. In the past, only couples with children had access to subsidized mediation hours. This pilot project began in February 2021 and will run until June 30, 2022. Visit the Quebec government website to find out more: family mediation pilot project for couples without children or without dependent common children.
