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How to Divorce: Divorce Act changes and children

Mar 11, 2021

I’m a mediator and no longer a lawyer, but, as I possess a masters degree in law or LLM, reading the law - especially about divorce and conflict resolution - has become a habit. I am very excited about a recent change to the Canadian Divorce Act, and am sharing a short summary (not legal advice) about these changes, divorce law and children.

The Canadian government has changed the Divorce Act. Its purpose: update the concepts in divorce law to focus on the best interests of the children. Part of this is reducing conflict. Conflict harms children. If you do not believe me, then google “CDC and Kaiser and ACE”. You will be taken to a website with survey results about the long-term effects of “Adverse Childhood Experiences” or ACEs. But I digress. Back to the Divorce Act and children.

The first change relates to the language used in conjunction with children.

If you have any knowledge of divorce, you have heard the terms “custody” and “access”. These terms – and “custody order’ – have been removed from Canada’s Divorce Act.

Historically “custody” and “access” are legal terms that relate to property. They describe what a person does with his property. If he has care and control of it, he has custody. If he lets someone else control his property for a short time, this is access. [aside: if you wonder why I use the male pronoun, it is because historically only men could own property. I do not condone this, yet I do not like to gloss over historical realities that I find distressing.]

In the British legal system divorce reforms date from 1857. Canada was not even a country, so Britain’s divorce law became part of Canada’s legal system.

In 1857, at law children were property. The only people who had a proprietary interest in the children were the parents. As women were property too, this meant only the father could have custody of his children.

Finally, the property language in the Divorce Act has been removed. This is something to celebrate!!! Children are not property; they are human beings who deserve to be treated with dignity.

Now the Divorce Act speaks of parenting time, parenting orders, and contact orders. Justice Canada notes on its website,

“To emphasize the best interests of the child, the Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term “parenting order” replaces “custody order” throughout the Act, for instance. Similarly, the term “contact order” describes an order that sets out time for children to spend with important people who are not in a parental role, such as grandparents.”

This will be a change for grandparents who are no longer able to interact with their grandchildren. It is a sign to parents they need to put the needs of their children first.

This change is more than words. Government is taking a stand in the high conflict divorce battles. Now government is recognizing children are not property or pawns in a legal battle. They and their care matters.

Takeaway: Implement the Divorce Act changes in your conversations. Instead of talking about custody and access with your spouse or family members – which by their very meaning suggest one parent is taking at the expense of the other – start talking about parenting time. This is less threatening, and is more conducive to divorcing peacefully.

If you have any questions about these changes or want to know how you can change your language or avoid working with a lawyer, please consider signing up for a complimentary 20-minute consultation.

Disclaimer: this blog post does not offer legal advice. For legal advice, please consult a lawyer in the province where you live.

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