Changes To Divorce Act Focus On Best Interests Of Children


Nearly two years ago, the federal government introduced planned changes to Canada’s family justice system. On March 1, 2021, these changes finally took effect, marking the first time in more than 20 years that the Divorce Act received significant changes. The changes, which address the promotion of the best interests of the child as well as issues related to family violence answer calls groups and individuals have been requesting for years.

The best interests of the child remain a primary focus

The best interests of the child, or children involved in a family law matter have long been the primary factor to consider when courts make decisions that impact the child, including those related to access, education, and more. In fact, the Divorce Act already had language stating that only the best interests of the child should be considered for matters related to custody. However, what constitutes the best interests of the child was not always clear, and courts relied on common law in order to approach an analysis on the matter.

The changes to the law clearly spell out that along with the child’s physical, psychological, and emotional safety & wellbeing, other factors courts shall consider are:

  • 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

The Act notes that each child is different and there is no one-size-fits-all approach to determining the best interests of a child.

Language to focus on the children rather than the parents

It’s a commonly held belief in family law circles that some of the language used to discuss certain issues is focused too much on winners and losers on the parents’ side as opposed to the interests of the children.

As a result of this, the Divorce Act changes introduce the phrase “parenting orders” to replace terms such as “custody and access orders.” Additionally, the term “parenting time” will be used to reference the time a child spends with one of their parents.

The changes to language may not seem significant, but they are part of an attempt to use neutral words and avoid the idea of there being winners and losers in decisions related to parenting arrangements.

Addressing family violence

One of the other most substantial changes is the inclusion of family violence, particularly as it relates to a child’s well-being. The Act now defines family violence as 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

Courts are now directed to take family violence into account when making decisions related to parenting, contaact or support orders.

Navigating the world of family law can be a difficult task, particularly when one is already struggling with the emotional impact of a divorce or separation. To discuss your legal needs with one of our experienced Windsor divorce lawyers, on a matter that is sensitive to your needs, call 519.973.1500, get started now or contact us online. We serve clients in Windsor, Essex County and throughout the region.



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