The Divorce Act Changes Explained

Best interests of the child

Parenting time consistent with best interests of child Footnote 1
(Section 16(6), Divorce Act)

New section

Parenting time consistent with best interests of child

(6) In allocating parenting time, 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.
Old section

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

What is the change

When making an order related to parenting time, courts must seek to ensure that the child has as much time with each spouse as is in the child’s best interests.

Reason for the change

It is well accepted that unless circumstances, such as safety concerns, indicate otherwise, children should have strong relationships with each parent. Sufficient time with each parent is necessary to maintain these relationships.

However, the optimal amount of time depends on an individual child’s circumstances and must be based on what is in the child’s best interests. Therefore, courts must take into account all factors relating to the best interests of the child in determining what division of time would be best.

Previously, the Act included a similar principle about contact with each spouse, along with what is known as the “friendly parent rule.” The friendly parent rule is now included in the list of best interests of the child factors in s 16(3). It requires that courts consider each parent’s willingness to support the child’s relationship with the other parent and must be considered along with other relevant factors in determining parenting arrangements.

As part of the best interests of the child analysis, the allocation of parenting time is subject to the overarching primary consideration of the child’s safety, security and well-being.

When

March 1, 2021.

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