The Divorce Act Changes Explained

Best interests of the child

Best interests of the child
(Section 16(1), Divorce Act)

New section

Section 16 of the Act and the heading before it are replaced by the following:

Best Interests of the Child

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Old section

Custody Orders

Order for custody

16 (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.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Application by other person

(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Order respecting change of residence

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

What is the change

A new section, titled “Best Interests of the Child,” replaces the previous s 16. It requires courts to consider only the best interests of the child in decisions about parenting and contact orders.

Reason for the change

Courts have long considered only the best interests of the child in decisions about parenting. This test is also found in provincial and territorial family law, and in the United Nations Convention on the Rights of the Child.

The test in Canadian family law when courts make orders about parenting is the best interests of the child. Each child is different and each family is different. A parenting arrangement that might be in one child’s best interests might not be in the best interests of another. Therefore, as the Special Joint Committee on Child Custody and Access noted in its report For the Sake of the Children in 1998, a presumption in favour of a particular parenting arrangement would not likely be in the best interests of children. Parenting arrangements for a child would have to be what is best for that child in that child’s particular situation.

When

March 1, 2021.