2nd Session, 40th Parliament,
57-58 Elizabeth II, 2009
house of commons of canada
An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts
Whereas the Parliament of Canada recognizes that amendments to the Divorce Act are necessary in order to
(a) clarify the purpose and underlying principles of the Act,
(b) encourage divorcing spouses to assume more responsibility for their affairs, with less reliance on adversarial processes,
(c) promote joint responsibility and joint decision-making by spouses in respect of ongoing child care, nurturing, and development,
(d) establish that the interests of the child are best served through maximal ongoing pa- rental involvement with the child, and that the rebuttable presumption of equal parenting is the starting point for judicial deliberations,
(e) clarify relocation considerations by plac- ing the onus on the relocating parent to maintain continuity of relationship, and
(f) provide for consistent collection of court statistics;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. 3 (2nd Supp.)
1. (1) The definitions “custody” and “custody order” in subsection 2(1) of the Act are repealed.
(2) The definitions “corollary relief proceeding” and “divorce proceeding” in subsection 2(1) of the Act are replaced by the following:
“corollary relief proceeding”
« action en mesures accessoires »
“corollary relief proceeding” means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or aparenting order;
« action en divorce »
“divorce proceeding” means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a parenting order;
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
« rôle parental »
“parenting” means the act of assuming the role of a parent to a child, including custody and all of the rights and responsibilities commonly and historically associated with the role of a parent;
« ordonnance parentale »
“parenting order” means an interim order or a final order made under subsection 16(1) and includes a custody order made under this Act before the coming into force of this definition;
« membre de la famille »
“relative” means, in relation to a child,
(a) a brother, sister, half-brother, half-sister, stepbrother or stepsister,
(b) a grandparent,
(c) the spouse or common-law partner of either parent,
(d) an uncle or aunt,
(e) a nephew, niece, or cousin, and
(f) any other person who has the status of any of the persons referred to in paragraphs (a) to (e) according to the cultural norms of either parent;
2. The Divorce Act is amended by adding the following after section 2:
2.1 (1) The purpose of this Act is to provide for the expeditious and equitable dissolution of a marriage and to provide for the care of the children of the marriage.
(2) The following principles are to be taken into account in the interpretation and application of this Act:
(a) spouses who are undergoing a divorce should be encouraged to seek their own solutions with reduced reliance on court intervention; and
(b) every child has the right
(i) to know and be cared for by both parents,
(ii) to know his or her relatives and enjoy his or her culture, and
iii) to spend time and communicate with both parents on a regular basis, and to maintain continuity of relationships with relatives.
3. Subsection 6(3) of the Act is replaced by the following:
Transfer of variation proceeding
(3) Where an application for a variation order in respect of a parenting order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.
4. Subsection 9(2) of the Act is replaced by the following:
Duty of legal adviser
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a) to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a parenting order;
(b) to inform the spouse of the available resources for counselling, mediation, parental coordination and family arbitration that might be able to assist the spouses in co-parenting in the best interests of the child; and
(c) to discuss with the spouse the advisability of providing for the use of the resources referred to in paragraph (b) in a parenting order.
5. Subsection 11(4) of the Act is replaced by the following:
Definition of “collusion”
(4) In this section, “collusion” means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for the separation of the parties or for financial support, division of property or the parentingof any child of the marriage.
6. The heading before section 16 of the Act is replaced by the following:
7. (1) Subsections 16(1) and (2) of the Act are replaced by the following:
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 parenting of any or all children of the marriage.
Interim order for parenting
(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 parenting of any or all children of the marriage pending determination of the application under subsection (1). In making an interim order, the court shall take into consideration the same factors that it is required to consider when making a final order.
(2) Subsections 16(4) to (10) of the Act are replaced by the following:
Making parenting orders
(4) Subject to subsection (5), in making a parenting order, including an interim order, the court shall:
(a) apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage; and
(b) apply the presumption that equal parental responsibility is in the best interests of a child of the marriage.
Non-application of presumptions
(5) The presumptions referred to in subsection (4) are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally.
Maximum practicable contact
(6) If the presumptions referred to in subsection (4) are rebutted in accordance with subsection (5), the court shall, in making an order under this section, nevertheless give effect to the principle that a child of the marriage should have the maximum practicable contact with each spouse that is compatible with the best interests of the child.
Factors to consider
(7) In making an order under this section in a case where subsection (6) applies, the court shall have regard to
(a) the capacity of the spouses to arrange for parenting time given the distance between their respective residences;
(b) the willingness of the spouses to communicate and utilize appropriate services to resolve disputes;
(c) the working schedules of the spouses and availability of caretakers; and
(d) the effect of any arrangement on the well-being of a child of the marriage.
Assistance to spouses
(8) With the consent of the spouses, the court may appoint a counsellor, advisor, mediator or parental coordinator, with or without arbitral powers, to assist the spouses in co-parenting in the best interests of the child.
(9) Unless the court orders otherwise, each spouse may make inquiries regarding the health, education and welfare of a child of the marriage and is entitled to be provided with all relevant information in response to those inquiries. The court may make a multi-directional parenting order under this section that directs a person, organization or entity to provide any such information to a spouse.
Terms and conditions
(10) 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 any other terms, conditions or restrictions that are compatible with sections 16 and 16.1 as it thinks fit and just.
Order respecting change of residence
(11) Without limiting the generality of subsections (4) and (6), the court may include in an order under this section a term requiring any person who has parental responsibility in respect of a child of the marriage and who intends to change the place of residence of the child to notify, at least 30 days before the change or within such other period before the change as the court may specify, the other spouse of the change, the date on which the change will be made and the new place of residence of the child, as well as the telephone numbers, email address and other contact information for the child.
Prohibition against change of residence
(12) Despite subsection (11) and without limiting the generality of subsections (4) and (6), if changing a place of residence of a child of the marriage would make compliance with a parenting order impractical or unreasonable, the court shall include in an order under this section a term prohibiting a change in a place of residence of the child without the written consent of both spouses.
Duty to pay expenses
(13) Unless otherwise agreed by the spouses, the court may order a spouse who changes the place of residence of a child of the marriage to pay any additional reasonable expenses that are necessary in order to maintain, to the greatest extent practicable, the parenting arrangements that were in place before the change.
Matters to be considered in making parenting orders
(14) In making a parenting order under this section, the court shall regard the best interests of the child as the paramount consideration, while taking into account the following:
(a) the presumptions set out in subsection (4), as applicable;
(b) the principle of maximum practicable contact, as described in subsection (6); and
(c) the considerations set out in subsections (15) and (16), with more weight being given to the considerations in subsection (15) than those in subsection (16).
(15) The primary considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in aggregate, are
(a) the benefit to the child of having a meaningful relationship and as much contact as is practicable with each of his or her parents;
(b) the continuity of relationships with rel- atives;
(c) the willingness, and the effectiveness of the efforts, of each spouse to facilitate, encourage and support the child’s continuing parent-child relationship with the other spouse; and
(d) the protection of the child from physical and psychological harm through abuse, neglect or alienation of parental affection.
(16) The additional considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in the aggregate, are
(a) any views that are voluntarily expressed by the child free from influence by either spouse or by any other person, with due weight to be given by the court to these views in accordance with the maturity and comprehension level of the child;
(b) the benefits associated with maintaining a continuity of the culture and traditions of the child;
(c) family violence committed in the pres- ence of the child; and
(d) any event or circumstance since separation that indicates that the behaviour of either spouse is not compatible with the primary considerations set out in subsection (15).
Allocation of parenting time
(17) The court shall apply the following principles in allocating parenting time between the spouses to the extent that they are compatible with the best interests of the child:
(a) weekend, vacation, school holiday, fam- ily birthday and religious and cultural holiday time shall be allocated equitably between the spouses, with a view to the spouse with lesser aggregate time having as much of his or her parenting time as possible at times when he or she can be present with the child;
(b) extra-curricular and educational programs and activities shall be scheduled so that they have an equitable impact on the parenting time allocated to each spouse; and
(c) if relatives of the child reside in other cities, the travel requirements of a spouse shall be taken into consideration.
Reasons for decision
(18) If the court makes an order under this section that does not provide for equal parenting time or equal parenting responsibility, the court shall, in the reasons for its decision, explain in detail why such an order was made notwithstanding the principles for parenting orders set out in this section.
(19) In making an order under this section, the court shall not take into consideration the past conduct of a spouse unless the conduct is relevant to the ability of that spouse to act as a parent of a child of the marriage.
8. The Act is amended by adding the following after section 16:
Content of parenting order
16.1 Every order made under section 16 shall provide for
(a) the persons with whom a child of the marriage is to live;
(b) the allocation of parenting time between the spouses in accordance with the best interests of the child, as determined under that section;
(c) the allocation of parental responsibility for the child;
(d) the form of consultations that the spouses are to engage in before making decisions that will have a significant impact on the circumstances of the child;
(e) the form of communications that the child is to have with others and their modalities, such as letter mail, telephone or electronic means;
(f) the possession of the child’s records, and, if applicable, any restrictions that relate to sharing those records;
(g) the dispute resolution procedures that are to be followed when needed, including, if appropriate, the names of individuals who are to be consulted;
(h) rules applicable to change of residence, as set out in section 16;
(i) child support;
(j) the identification of any parts of the order that have been issued on consent; and
(k) the name of the judge.
16.2 (1) The following definitions apply in sections 16 and 16.1.
« responsabilité parentale »
“parental responsibility” means responsibility for
(a) making long-term decisions with respect to the health, education, welfare, development, religion, culture, name and changes to the living arrangements of a child;
(b) carrying out the everyday tasks that are associated with the care and activities of a child; and
(c) making emergency decisions in respect of a child.
“equal parenting responsibility”
« partage égal de la responsabilité parentale »
“equal parenting responsibility” includes joint responsibility for long-term decision-making and responsibility for daily care during allocated parenting time, but does not include major decisions made by one parent during an emergency situation.
« temps parental»
“parenting time” means, with respect to a particular spouse and child, the days and times that the spouse is given primary care and responsibility for the daily needs of the child.
9. (1) Paragraph 17(1)(b) of the Act is replaced by the following:
(b) a parenting order or any provision thereof on application by either or both former spouses or by any other person.
(2) Subsection 17(5) of the Act is replaced by the following:
Factors for parenting order
(5) Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of theparenting order or the last variation order made in respect of that order, as the case may be. The principles relating to parenting orders set out in section 16 apply to variation orders.
(3) Subsection 17(9) of the Act is repealed.
(4) Subsection 17(11) of the Act is replaced by the following:
Copy of order
(11) Where a court makes a variation order in respect of a support order or a parenting order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.
10. The Act is amended by adding the following after section 17.1:
Variation of existing parenting order
17.2 (1) Where an application is made for a variation order in respect of a parenting order that was made before the coming into force of this section, the court shall determine the application in accordance with the provisions of this Act as they exist at the time the application is before the court.
Change of circumstances
(2) The coming into force of subsection 17(5), as enacted by subsection 9(2) of this Act, constitutes a change of circumstances within the meaning of subsection 17(5).
Compilation of statistics on parenting orders
17.3 (1) The Minister of Justice may make any arrangements the Minister considers expedient between the provinces, as administrators of the Superior Courts, and any department of the Government of Canada, for the collection, transmission and exchange of any information or statistics concerning parenting orders.
Regulations concerning the collection of statistics
(2) The Governor in Council may make regulations that provide for the collection, compilation and publication of statistics regarding parenting orders. These statistics may include the allocation of parenting time between spouses, the extent of decision-making by each spouse, and the number and ages of the children to which these statistics relate.
11. Paragraph 34(1)(a) of the Act is replaced by the following:
(a) the order were a support order or parenting order, as the case may be; and
R.S., c. C-46
12. Section 282 of the Criminal Code is amended by adding the following after subsection (2):
(3) The following definitions apply in this section and section 283.
« ordonnance de garde »
“custody order” includes a parenting order made under section 16 of the Divorce Act.
« disposition d'une ordonnance»
“custody provision” includes a provision relating to the parenting of a child included in a parenting order made under section 16 of the Divorce Act.
R.S., c. 4 (2nd Supp.)
Family Orders and Agreements Enforcement Assistance Act
13. The definitions “custody provision” and “order” in section 2 of the Family Orders and Agreements Enforcement Assistance Act are replaced by the following:
« disposition de garde »
“custody provision” means a provision of an order or agreement awarding custody of a child, and includes a provision relating to the parenting of a child included in a parenting order made under section 16 of the Divorce Act;
« ordonnance »
“order” means any order or judgment, or interim order or judgment, relating to family support, custody or access that is enforceable in a province, and includes a parenting order made under section 16 of the Divorce Act;
Published under authority of the Speaker of the House of Commons