The Divorce Act Changes Explained
(Section 16.1(1), Divorce Act)
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses; or(b) 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.
Order for custody16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
What is the change
The concept of “parenting” now replaces the concepts of “custody” and “access” in the Act. A court may make a parenting order respecting the exercise of parenting time or decision-making responsibility for the child. Either or both spouses, along with certain non-spouses, can apply for a parenting order.
Reason for the change
The Act no longer uses an approach based on “custody” and “access” but rather focuses on “parenting time” and “decision-making responsibility,” which may be allocated in a parenting order. Unlike “custody” and “access,” which are terms commonly associated with property ownership, the new terms encourage parents to focus on the needs of their children.
Other jurisdictions, including Alberta, British Columbia, several American states, the United Kingdom and Australia, have moved away from the concepts of “custody” and “access,” and many Canadian judges and mediators no longer use these terms.
Parenting orders are intended for those who either have or wish to take on responsibilities for the care and upbringing of a child. Only spouses and certain non-spouses (those who are a parent, who stand in the place of a parent, or who intend to stand in the place of a parent) may apply for a parenting order. Others, such as grandparents and other non-spouses, can apply for contact orders (see s 16.5(1)).
March 1, 2021.
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