For the first time in about 20 years, Canada’s Divorce Act has received significant amendments that aim to shape not only the way people talk about common family law issues such as custody and access, but also the ways in which courts will consider the best interests of the child in all matters related to children in family law. At North Toronto Lawyers, we wanted to take a moment this week to review these changes with our readers.

Four key objectives listed for changes

The federal government has said that the updates to the legislation have four key objectives. They are to:

  • promote the best interests of the child
  • address family violence
  • help to reduce child poverty
  • make Canada’s family justice system more accessible and efficient

It’s notable that two of these goals speak specifically to children, though of course all of the factors can impact children in one way or another.

Best interests of the child explained

The best interests of the child have long-since been the only factor for courts to consider in most matters related to children, however the updates to the Act provide more clarity in what criteria is used to determine the best interests of the child. Rather than relying strictly on common law, it is now established by statute that along with the main considerations of the child’s physical, emotional and psychological safety and wellbeing, other factors include:

  • the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
  • the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
  • the child’s views and preferences

It’s always worth noting that every child and situation is different, and these factors should be applied to each child individually.

A move towards less adversarial language

One of the more common requests related to updating family law in Canada has been related to the language used to discuss issues. Until now, language such as “custody” has led to the belief that there are winners and losers in family law litigation, with the child not being at the centre of the language used. Instead of terms such as “custody” and “access”, orders from courts should now use phrases such as “parenting order” and “decision-making-responsibilities.”

Family violence earns a larger position in consideration of family law matters

Family violence has long been something that has been handled by the criminal courts. But of course, family violence is also a factor in many matters that appear before family courts. With the changes to the Act, courts will now have to take family violence into account when making orders related to parenting, contact, or support orders.

Family violence is described as conduct that includes more than simply violent conduct. It includes any conduct that is:

  • violent
  • threatening
  • a pattern of coercive and controlling behaviour
  • causes a family member to fear for their safety
  • directly or indirectly exposes a child to such conduct

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short-term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

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