February 7, 2014 By: Erin Lepine
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On December 6, 2013, MP Maurice Vellacott introduced a Private Member's Bill (Bill C-560) that, if passed, would create a presumption that shared custody and equal parenting time is in the best interests of the child when making orders for custody and access under the Divorce Act. If successful, the proposed legislative change would put the onus on divorcing parents to prove why equal parenting time is not in a child's best interests.

So, how does this differ from how the law in relation to custody and access currently operates? As it is written today, the Divorce Act provides for a principle of "maximum contact". The intention behind this principle is that children should be afforded the opportunity to spend as much time as possible with each parent, in so far as it would be in the child’s best interests. The Court is therefore required to consider the willingness of each parent to foster a relationship between the child and the other parent when determining issues of custody and access. The court is not currently required to start from the position that equal parenting time is in the child's best interests.

The proposed change appears to be intended to remove the animosity in custody proceedings, and the risk of children being placed in the middle of custody disputes where they feel forced to choose between one parent over the other. In practice, however, it remains to be seen if such a shift in the law would really change the number of custody disputes going to court, and the nature of the dispute and level of animosity between the parents.

In my view, the more interesting aspects of Bill C-560 are the more subtle aspects. For example, the Bill is proposing to change the current terminology, such that the word "custody" as it is currently used in the Divorce Act would be replaced with the word "parenting". Moreover, the Bill includes new provisions placing a greater emphasis on the parents’ obligation to support the child's on-going relationships with both paternal and maternal relatives, as well as those of half-siblings, step-siblings and step-parents.

It should be noted that this is not the first time that this particular Private Member's Bill has been introduced and that Private Member's Bills, though important, rarely become law. Nevertheless, the Bill is generating an interesting discussion. What will come of this discussion, I suppose we will just have to wait and see…

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law