There is a new sheriff in town! Actually, there is a new sheriff in the form of the re-worded and amended and updated Children’s Law Reform Act(CLRA). Terms such as custody and access that each and every case related to parenting came to be fought about has now become outdated. Those terms have ceased to exist.
The following summary is from the L.B. v P.E., 2021 ONCJ 221 by Justice Sherr. This part analyzes general terms related to the amendments. The second part will talk about the new mobility section and its impact.
There was no specific mobility section previously. Now there is. Part 3 will talk about the new sections related to domestic violence.
On March 1, 2021, amendments (the amendments)[3] to the Children’s Law Reform Act (the Act), contained in the Moving Ontario Family Law Forward Act, 2020, came into force.
[32] Language in the Act is modernized with these changes. Terminology related to child custody and access is replaced with terminology related to parenting.
[33] Custody now becomes decision-making responsibility. Decision-making responsibility is defined as responsibility for making significant decisions about a child’s well-being, including with respect to,
a) health,
b) education,
c) culture, language, religion and spirituality, and
d) significant extra-curricular activities.
[34] Access by a parent to a child now becomes parenting time. Parenting time is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.
[35] And access by a non-parent to a child becomes contact. This is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time. [4]
[36] The amendments set out who can apply for two different kinds of orders – parenting orders and contact orders. It establishes a list of non-exhaustive criteria with respect to determining the best interests of a child. It introduces provisions to assist the courts in addressing family violence. And it establishes a framework for determining when one parent will be permitted to relocate with a child and the amount of notice that must be provided to another parent.
[37] The amendments are aligned, for the most part, with the changes made to the Divorce Act (Canada) that also came into force on March 1, 2021.
Section 24 of the amendments reads as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Analysis:
The best interests section has increased manifold. It now includes many new points. Decision making responsibility has replace custodial issues analysis. It needs more subtle analysis rather than a blind reiteration of the previous provision that it has replaced. Using the new sections, it is important to show how parenting becomes a critical part of the decision making exercise. It needs detailed explanation with examples historically and to the present to show how parenting is done by each parent related to their decision-making capacities. In other words, it needs careful analysis, and detailed thinking.
At Shankar Law, we can do this for you. We are skilled professionals, keen on research, case law and up to date on old laws and on amended ones!
At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work all over Ontario, but preimarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.