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New terminology under the Divorce Act

On March 01, 2021 changes were made to the terms used within the Divorce Act.

01.

Parenting time

Parenting time refers to the time that children spend in the care of one of their parents, whether or not the child is physically with the parent (for example, it includes times when children are in school). Parenting time may be set out in a schedule. If you are a parent who had “access” under the Divorce Act, you now have “parenting time.”

Unless the court orders otherwise, a parent with parenting time has the right to ask for, and must be given, information about the health, education and welfare of the children from the other parent or a third party (for example, the school, a doctor).

02.

Decision-making responsibility in Canada

Decision-making responsibility is the responsibility to make important decisions about a child’s well-being, including decisions about health, education, culture, religion, and significant extracurricular activities. The Divorce Act says that a parent who has “custody” under an old custody order now has “decision-making responsibility.”

If one parent is responsible for making all the decisions about a child they have sole decision-making responsibility. If both parents have decision-making responsibilities, they have joint decision-making responsibility.

03.

Parenting order

A parenting order is an order made by a court that sets out important details about parenting arrangements, such as the time the children will spend with each parent, each parent’s decision-making responsibilities, and how the children will communicate with one parent when spending time with the other parent.

04.

Parenting plan

A parenting plan describes how parents not living together will care for and make important decisions about their children in both homes. You can agree to any type of parenting arrangement, but you should focus on what is in the best interests of your children.

05.

Contact

Contact is court-ordered time that a person who is special to a child but is not their parent—for example a grandparent—spends with that child. A court will issue a contact order based on whether it is in the child’s best interests.

06.

Shared parenting time

Shared parenting time refers to situations where a child spends at least 40 percent of the time with each parent. This term is normally used in the child support context. Shared parenting time was formerly referred to as shared custody.

07.

Split parenting time

Split parenting time refers to situations involving more than one child where each parent has the majority of parenting time—over 60 percent—with at least one of the children. This term is normally used in the child support context. Split parenting time was formerly referred to as split custody.

08.

Majority of parenting time

Majority of parenting time refers to situations where a child spends more than 60 percent of the time with one parent. This term is normally used in the child support context. Majority of parenting time was formerly referred to as sole custody.

Family dispute resolution: resolving family law issues out of court

01.

Family dispute resolution process

is a new term in the Divorce Act. It is used to describe a number of out-of-court processes families can use to solve issues such as parenting, child support, and for some families, property issues. Negotiation, mediation, collaborative law and arbitration are types of family dispute resolution that are explained below.

02.

Differences between negotiation, mediation, collaborative law and arbitration

Negotiation - Negotiation can be done with or without the help of a legal adviser. It involves discussions between you and your former spouse to try and come up with a compromise or agreement about issues related to separation and divorce.

A parenting plan outlines how parents will raise their children after separation or divorce. Parenting plans describe how parents not living together will care for and make important decisions about their children in both homes.You can come up with a parenting plan through any of the forms of family dispute resolution. For more information on parenting plans consult the Parenting plan checklist.

Collaborative Law - Collaborative law is a specific type of negotiation. In collaborative law, you and your former partner, your legal advisers and any other professionals (for example, financial advisors, mental health professionals or accountants), agree to work cooperatively to come to an agreement. During the collaborative process, you and your former partner agree not to bring any court applications.

Mediation - A mediator is a neutral third party who can help you and your former partner identify and discuss issues relating to parenting, separation or divorce. Mediators can help you identify issues and work on possible solutions. During mediation, you and your former partner tell each other directly what you want and need for yourself. If you have children, you can also say what you believe is in your children’s best interests.

The mediator does not take sides or make decisions for you. They also cannot give legal advice. While the mediator will help you arrive at an agreement, in the end you and your former partner make the decisions including those about the best parenting arrangement for your child.

Because mediation usually involves direct discussions with the other person, it is not appropriate for everyone. For example, if there has been family violence and there are ongoing safety concerns, it may not be possible for you and the other person to mediate safely and effectively.

In some cases, other ways of mediating are better. For example, in shuttle mediation, you and your former partner do not need to be in the same room. The mediator speaks to one person, and then to the other person separately. You and your former partner negotiate with the help of the mediator, without being face-to-face.

It may also be possible to mediate from different locations using technology such as a telephone or videoconference. For example, you might do this if you and your former partner live in different cities.

Arbitration - In some provinces, parenting issues, as well as property and support issues, can be solved through arbitration. In arbitration, you and the other person agree to allow a neutral person—the arbitrator—to decide the legal issues.

Arbitration is a private process and you and your former partner are responsible for paying the arbitrator, as well as your own legal advisers (if you have them). Arbitration tends to be a more informal process than a court trial.

Parenting Coordination - Parenting coordination is a child-focused family dispute resolution process. It is for resolving parenting disputes that come up after you have made an agreement or order about parenting time, parental responsibilities or contact between the child and other important people in the child’s life. Parenting coordinators may use a combination of mediation and arbitration to solve parenting disagreements. Parenting coordinators can be family law lawyers, mental health professionals, social workers, family therapists, mediators, and arbitrators.

03.

How to decide which family dispute resolution approach is best for your family

When deciding which family dispute resolution option is best for you, there are many things to think about. The publication Making Plans contains helpful information about parenting after separation and divorce. For example, you may need to think amount of conflict between you and the other parent.

You may also decide that having someone, like a judge or an arbitrator, make those decisions for you is the best option for you and your family.

04.

When you do need to go to court

If you and your former partner cannot come to an agreement or are only able to agree on certain issues, you may need someone else to make the decision for you.

Arbitration is one way that allows you to have someone else make the decision for you.

You can also go to court. Going to court means that you’re asking a judge to decide what outcomes are appropriate for you and your family. You should not expect the court to give you a court order right away. It can take a long time.

There are many steps in the court process, which may be different depending on where you live. Even if you end up going to court, the court will encourage you and your former partner to come to an agreement through another method, if possible. In fact, a judge may try to settle the issues out of court themselves as well – for example with a procedure called a settlement conference. At a settlement conference a judge gives you and your former partner options about how some or all of the issues can be settled, without going further in the court process.

As well, the courts in your province may make you and your former partner participate in some other form of dispute resolution before moving forward with a court action.

If you cannot settle your dispute, a judge will hold a hearing or a trial, and then make a court order. You must do what the court order says.

You can also ask the court to include an agreement you have made in a court order. This is called a “consent order” because you and your former partner have agreed to it. The process is much simpler than when the parties do not agree.

Remember
You may solve your disputes outside of court through family dispute resolution, but only a court can grant a divorce. Once the judge grants the divorce, the court will issue a divorce certificate proving that you are no longer married.

There may be other reasons you need to get a court order. For example, if you want your agreement to be recognized as a court order in another province or country, you will need to go to court.

Highly Conflicted Divorce Parents


Divorcing parents are frequently involved in a high level of conflict. Each can be hurt by partner's crude accusations in affidavits, court, social media and former circles of friends. Often they may lose friends, their home, the neighbourhood they grew up in and in some situations, property, businesses,  and public image.

Nothing compares to when children are caught in the middle of parental conflict. It affects a child's sleep, behaviour around family and friends, grades at school and more. Children exposed to the negativity, anger and hatred  of their parents can suffer long term mental health problems such as anxiety, insecurity, depression and anger. Often the child will try to fix the situation by resisting the parent who left, or was forced to leave.

Psychologist Marilyn Wedge reminds parents that "Although divorce is a sad ending to a marriage that began in love, divorce does not have to be damaging to children." She further provides a list of the "ten most important things parents can do to help their kids navigate the stormy seas of divorcing parents":

01.

Don't try to recruit your child into siding with one parent against the other.

02.

Do contain your hostility in front of the children. Hearing divorcing parents argue is the most common cause for a child of divorce to have problems.

03.

Do renegotiate a healthy co-parenting relationship after divorce. You don't have to be best friends with your ex, but you do need to have a civilized relationship so that your child is not burdened by your ongoing anger.

04.

Don't badmouth your ex in front of your child. In fact, make a point of telling your child a few good things about the other parent.

05.

Do get on the same page with your ex about all rules concerning the children: bedtime, homework, amount of screen time, curfew, and so forth.

06.

Do take a parenting class or attend family therapy with your ex if you are having trouble coming to agreement about rules and consequences for your child. Allow a professional to help you manage your anger at your ex.

07.

Don't badmouth your ex's parents or other family members. Children love their grandparents, aunts, and uncles, and if a parent says negative things about them the child will feel conflicted.

08.

Do reassure your child that she did not do anything to cause the divorce. Children often feel guilty when parents get divorced and need to be reassured that the divorce was not their fault.

09.

Do tell your children that both parents will continue to love them and spend time with them.

10.

Do tell your child that you expect her to continue to do well and be happy.

* Sourced from Psychology Today

Divorce Care

Many who go through divorce feel they are alone and everyone else is judging them. Often friends and family will take sides and some cases, cut ties to one or both parents.

Divorce Care is a support group with chapters worldwide and run nearly year-round. Even if you went through separation or divorce 10 years ago, many find this a positive learning experience and will use the tools to make a positive impact in current relationships.

Visit https://www.divorcecare.org/findagroup and type your postal code in the search box. 

The Divorce Care program was created by professionals who experienced divorce themselves, and is in its third edition. It involves 13 two-hour meetings with videos, discussions, breakout groups, and refreshments.

It is a very safe and friendly environment, with the chance to form friendships and peer support groups within the group at large. Participants can attend the group's several rounds, and other than the cost of the workbook, the course is free. The program is built on Christian values but is non-judgmental and is friendly to any religion.

For more information, visit the Divorce Care Organization at https://www.divorcecare.org/

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