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SUMMARY: This enactment amends the Divorce Act to require courts to ensure that parenting is shared between the spouses on an equal parenting basis, provided that doing so would not put a child at risk.
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Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. The Divorce Act is amended by adding the following after section 1:
Purpose
1.1 The purpose of this Act is to provide for the speedy and equitable dissolution of a marriage and to provide for the care of the children of the marriage by the spouses.
2. (1) The definition “corollary relief proceeding” in subsection 2(1) of the Act is replaced by the following:
“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 a parenting order;
(2) The definitions “custody” and “custody order” in subsection 2(1) of the Act are repealed.
(3) The definition “divorce proceeding” in subsection 2(1) of the Act is replaced by the following:
“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;
(4) Subsection 2(1) of the Act is amended by adding the following in
alphabetical order:
“equal parenting” means that the authority of the parents with respect to the child are the same in law as if the parents were both cohabiting with the child. This term also means that the time spent by the child with each parent shall be structured such that the child will alternate residences on a regular rotation. Such rotation shall provide that the total time, and the nature of such time, spent with each parent be the same. For the purposes of this provision the default rotation shall be on an alternating weekly basis unless the parents are in agreement that some other rotation shall be instituted.
“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;
“parenting order” means an order made under subsection 16(1) and includes a custody order made under this Act before the coming into force of this definition.
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:
Idem
(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 to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a parenting order and to inform the spouse of the available resources for mediation that might be able to assist the spouses in negotiating those matters.
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 parenting of any child of the marriage.
6. (1) The heading before section 16 of the Act is replaced by the following:
Parenting Orders
(2) Subsections 16(1) and (2) of the Act are replaced by the following:
Order for parenting.
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).
(3) Subsection 16(4) of the Act is replaced by the following:
Joint parenting
(4) The court may make an order under this section granting parenting of any or all children of the marriage to any one or more persons.
(4) Subsections 16(6) to (8) of the Act are replaced by the following:
Terms and conditions
(6) 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 such other terms, conditions or restrictions in connection
therewith as it thinks fit and just, provided that any such terms,
conditions and restrictions are consistent with subsection (10).
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may,
subject to subsection (8), include in an order under this section a term
requiring any person who has responsibility for the parenting of
a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such
other period before the change as the court may specify, the other
spouse of the change, the time at which the change will be made and the new place of residence of the child.
Prohibition against change of residence
(8) The court shall include in an order under this section a term
prohibiting any person who has responsibility for the parenting of a
child of the marriage from changing the place of residence of
that child if that change would make compliance with a parenting order impractical or unreasonable.
(5) Subsection 16(10) of the Act is replaced by the following:
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Equal parenting by spouses
(10) Subject to subsection (11), in making an order under this section, the court shall provide for equal parenting of the child
by each spouse,
unless the court determines that there is a grave risk that such order would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Any order that does not provide for equal
parenting shall include written reasons explaining why the court did not so provide.
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Exception
(11) Subsection (10) does not apply to any parenting order to which both spouses have given their consent.
7. (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:
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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 the parenting order or the last variation order made in respect of that order, as the case may be. A variation order shall provide for equal parenting of the child by each spouse, unless the court determines that there is a grave risk that such order would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Any variation order that does not provide for equal parenting shall include written reasons explaining why the court did not so provide.
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(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.
8. 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 the amendment to subsection 17(5) of the Divorce Act, as enacted by this Act, constitutes a change of
circumstances that gives rise to the making of a variation order in
respect of a parenting order.
Compilation of statistics
17.3 The Minister of Justice shall collect information and compile and
publish statistics regarding the time that is spent by each spouse
affected by a parenting order made under this Act in a parenting role
with respect to the children that are the subject of that order.
9. 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
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