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Divorce Act changes: are they in the ‘best interest of the child?’

Proposed changes to federal divorce law may better protect children caught up in divorce. Among other items, the bill aims to replace terms typical of contentious divorce, such as ‘custody’ and ‘access’ with ones aimed at more effectively identifying children’s best interests and reducing conflict between couples.

This week, we look at the proposed changes and how they could affect divorcing couples with children.

How the best interests of a child will be determined

Under the new bill, there will be more factors for a judge to consider when deciding where the best interests of a child lie. These include:

  • Considering a child’s emotional well-being, not just its financial well-being
  • The child’s relationship with its grandparents
  • The child’s cultural and religious heritage
  • The childs own views and preferences

The bill also includes guidelines for dealing with a parent’s request to relocate the child.

Reducing parental conflict How?

Bill C-78 encourages parents to settle their differences in other ways, such as mediation, before going to court. Alternative, out-of-court solutions can be less stressful, costly and time-consuming than litigation.

Parenting time will also replace ‘custody’, while parenting orders will replace ‘access’. John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family, says that the language change means a lot, as the old language “was so adversarial in the past, and really fomented a lot of conflict between parents.”

Rebecca Bromwich, a Carleton University law instructor, believes changing the language may have power. “The sense of victory or defeat when a determination is made about where your child is going to live, and where they’re going to spend their time” is gone. Bromwich hopes that the language change will be part of a cultural paradigm shift away from high-conflict divorces.

Family violence is also defined in bill C-78, and judges must take any relevant history of family violence into account when making decisions regarding children.

The outlook

Changes to the Divorce Act may soon become law, and could have a significant effect on how judges decide how parents will divide parenting time with children. Anyone involved in divorce should consult an experienced family lawyer about the impact these changes may have on them and their families.

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