Finally: Out With the Old and In With the New!

The amendments to the Divorce Act, most of which are scheduled to come into force on July 1st, 2020, will replace the current “rights-based” terminology (“custody” and “access”) with more inclusive and child-focused language.

The term “custody” is replaced by the term “decision-making responsibility” and the amendments identify specific areas of decision-making responsibility that may, by the terms of a court order, be assigned to one or both parents, divided between them, or assigned to another person who the court finds either stands in the place of a parent or intends to stand in the place of a parent.

The term “decision-making responsibility” refers to significant decisions about a child’s well-being, not minor decisions that are generally referred to as “day-to-day” decisions. The legislation identifies the following key areas of decision-making responsibility, although this list is not exhaustive:



culture, language, religion and spirituality

significant extra-curricular activities

Significant decisions may also relate to daycare arrangements, the age at which a child may stay at home alone, and children’s use of electronic devices and access to social media.

Decisions relating to a child’s health may include the qualifications, skill and experience of healthcare professionals who will assess and treat the child, how often and by whom a child will be assessed, whether a child undergoes surgery, takes medication or supplements, and whether child attends counseling or therapy.

Decisions relating to a child’s education may include decisions about choice of school (public, private, alternative), the location of the school, and educational programming (English, French, French immersion, gifted), psycho-educational testing and individual education plans.

Decisions relating to culture, language, religion and spirituality may include decisions about children’s participation in formal or informal religious ceremonies, practices and education and their opportunities to participate in important and traditional cultural events and celebrations. Providing a child with the opportunity to learn and maintain language would also be major decisions.

Significant decisions about a child’s extra-curricular activities may relate to whether the child participates in recreational or competitive activities, how many activities they may be enrolled in at any given time and the level of commitment required by each parent and the child for the child to engage in one or more particular activities. Of course, the cost of the activities will also factor into this decision-making in this area.

Kathryn d'ArtoisComment