What does the revised Divorce Act say about parenting plans?

Mother and toddler

The changes to the Divorce Act give parenting plans a more formal role than they have had in the past, so it is worth discussing them with any of your clients who are using the Divorce Act to resolve post-separation parenting issues. Parenting plans can also be a useful tool for parents who need a structure within which they can raise their children post-separation.

What’s a parenting plan?

According to section 16.6(2) of the Divorce Act, a parenting plan is “a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parents agree.”

Parenting time and decision-making responsibility are the new terms that replace the language of custody and access. Both of these are set out in parenting orders.

Parenting order replaces the terms “custody order,” “access order” and “custody and access order,” and assigns parenting time and decision making responsibility between the parents.

Parenting time describes the time the child spends in the care of each parent, including time that they are not physically with that person (ie when attending school).

Decision-making responsibility describes who can make decisions about the children. The parent with decision-making responsibility has the authority to make the significant decisions about the child’s life and well-being, including decisions related to health, education, culture, language, religion and spirituality and significant extra-curricular activities. This responsibility can be given to one parent or shared between the two parents.

Whichever parent the child is with at a given time has the authority to make day-to-day and emergency decisions during that time.

Contact refers to the time a child may spend with someone other than the parents; most often the grandparents.

Contact order is an order setting out the time a child spends with someone other than their parents; most commonly grandparents. A contact order can set out time a child spends with someone other than their parent, physically or by telephone, Skype, etc.

As with all decisions relating to children, the court must apply the best interests of the child test when deciding whether a child should spend time with a grandparent or other person.

What is the role of a parenting plan in the context of the Divorce Act?

Section 16.6(1) of the Divorce Act sets out that:

“The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.”

In other words, any parenting plan that meets the approval of the court will be included as part of the parenting order which, of course, gives the parenting plan considerable authority.

What new elements should a parenting plan have to reflect changes to the Divorce Act?

Decision-making responsibilities, as they are set out in the new Divorce Act, leave some room for confusion. Parents may share decision-making responsibilities between them, in which case the parenting plan should clearly stipulate whether:

  • They are to consult and agree on all major decisions
  • Each parent has primary responsibility for specific decisions (e.g. one is responsible for education decisions, the other for health care decisions, and so on)
  • How the parents will resolve disagreements about decisions (working with a parenting coordinator, mediation, etc.)

If one parent has decision-making responsibility, this means they can make the major decisions relating to the child without consultation with the other parent. However, the other parent can make “day to day” decisions for the child while the child is in that parent’s care.

Especially in situations of family violence, this opens the door to challenges, as an abuser may intentionally misinterpret the intent of this provision to make decisions to interfere with the decisions being made by the primary parent. For example, the abuser might say it is a day to day decision whether or not the child goes to a swimming lesson during time with that parent, which interferes with and challenges the decision of the primary parent to enrol the child in swimming lessons.

A parenting plan could attempt to clarify this problem by setting out with precision what kinds of decisions the non-primary parent can make as well as indicating that those decisions cannot conflict with the decisions made by the primary parent.

For example, the parenting plan could say:

Decision-making responsibility means the responsibility for making all significant decisions about a child’s well-being, including:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child, including;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity;

(f) giving, refusing or withdrawing consent to medical, dental and other health-related treatments, including mental health treatments, such as counselling or therapy, for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) starting, defending, compromising or settling any proceeding relating to the child;

(l) identifying, advancing and protecting the child’s legal and financial interests, and

(m) exercising any other responsibilities reasonably necessary to nurture the child’s development.

Unless the court orders otherwise, a person to whom parenting time is allocated may, subject to compliance with best interests of the child principles, make, during that time, day-to-day decisions affecting the child.

A parent shall not, during allocated parenting time, make decisions that conflict with decisions made by the parent with decision-making responsibility, or that are contrary to the best interests of the child.

Other considerations

Grandparent time with children: The addition of contact orders that spell out time that children can spend with people other than their parents, most often grandparents, may mean that parenting plans do not have to be as detailed with respect to these arrangements.

Moving: The Divorce Act contains new and detailed provisions to address situations where either parent wishes or needs to move, with or without the children, and any parenting plan should reflect these provisions.

The federal Department of Justice has a tool parents can use when preparing a parenting plan.