Important legislative amendments to provisions of the federal Divorce Act, RSC 1985, c 3 (2nd Supp) and the provincial Children’s Law Reform Act (CLRA), RSO 1990, c. C12 took effect on March 1, 2021.
The Divorce Act amendments were made through Bill C-78 (An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, SC 2019, c 16), and were originally scheduled to come into force on July 1, 2020; however, the Government of Canada deferred the effective date to March 1st, 2021 due to the extraordinary circumstances related to the COVID-19 pandemic.
Provisions of the CLRA were amended under the Moving Ontario Family Law Forward Act, 2020, SO 2020 c 25, which received Royal Assent on November 20, 2020 amending multiple pieces of family law legislation. Some of the CLRA amendments took effect March 1, 2021, in alignment with the effective date of similar Divorce Act amendments.
Key Changes to Terminology
One of the notable changes from the amendments is the change in terminology. The well-known terms of “custody” and “access” are now repealed and replaced with “decision-making responsibility” and “parenting time”. Decision-making responsibility provides persons granted that responsibility with the ability to make significant decisions about a child’s well-being, including in respect of health, education, culture, language, religion, spirituality, and significant extra-curricular activities. Parenting time means the time that a child spends in the care of a parent of the child (e.g. either a spouse or any individual in the place of a parent), whether or not the child is physically with that parent/person during that entire time. A person to whom parenting time is allocated by court order (or allocated by way of a schedule) will have exclusive authority to make, during that time, day-to-day decisions affecting the child.
The term “custody order” is now repealed and, in its place, the term “parenting order” has been enacted to mean a court order granting parenting time or decision-making responsibility in respect of a child to the persons set out in the order. In addition, a “contact order” means a court order allowing a person other than a spouse or parent of a child (for example, a grandparent) to have contact with a child, and the terms of such contact as the court considers appropriate. A parenting order or contact order may also include a “parenting plan”, which is a document submitted by the parties in the court proceedings and sets out agreed-upon elements relating to parenting time, decision-making responsibility or contact, and may be subject to any changes the court may specify.
The amendments also provide that unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request information about the child’s well-being, including in respect of their health and education, from others granted with parenting time or decision-making responsibility for the child, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws. This amendment clarifies that someone with parenting time or decision-making responsibility can seek relevant information directly from third parties, such as doctors, schools and others.
Takeaways and Considerations for Educators
Educators should be aware of the new terminology and other changes brought about by the amendments to ensure they understand family court orders, including parenting orders and contact orders, in order to comply with and facilitate the implementation of orders appropriately and to make informed decisions based on them. Such decision-making may be necessary in a wide range of situations, including a child’s registration at school, releasing a child for pick-up from school, participation in school meetings and sharing of educational information relating to the child.
About the authors
Kimberley Ishmael, Keel Cottrelle LLP, and Shamim Fattahi, Algieri-Boileau Legal.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.