The 2021 Canadian Parenting Reforms: Is Shared Parenting the New Normal?

Abstract

In March 2021 the first significant changes to the parenting provisions of Canada’s Divorce Act (DA) since its enactment in 1985 came into effect. While the legislative reforms were substantial, in many respects they reinforced judicial trends that were apparent in the caselaw under the previous legislation. Under the reforms, courts have continued to emphasize the need for individualized decision-making and the absence of legislative presumptions about parenting time or decision-making. However, the pre-existing trend towards increased use of shared parenting has continued. Shared parenting now appears to be the most common parenting arrangement in in Canada in cases where both parents have had a significant role in the lives of their children before separation. Although there is increasing use of shared parenting in Canada, the courts continue to recognize that equal parenting time and shared decision-making are not appropriate in cases where: there is high conflict; there are concerns about family violence, including alienating parental behaviour; older children are expressing independent preferences for other parenting arrangements; parenting capacity is compromised due to mental health or substance abuse concerns; or there is not a history of sharing parenting during cohabitation. In this paper, we identify some of the significant judicial trends in interpreting the legislative reforms, especially in Ontario, with a particular focus on the issue of “shared parenting,” including both shared parenting time and shared decision-making. We also discuss how the courts are applying the relocation provisions of the new legislation, which have significantly changed Canadian law and practice regarding that issue.

Keywords: shared parenting, joint custody, divorce law reform, family violence, parental alienation