Understanding Your Rights: Canadian Parents, the Law and Divorce or Separation

O’Canada, where do we begin when it comes to Canadian parents, the law and divorce or separation.

First, it’s going to be okay. While it may seem like there are a million different things to consider and understand when you are separating with your partner and taking the steps to divorce, it is not as overwhelming as it originally is.

Second, Canada has a lot of protections for all parents during a divorce and when we are looking at same sex couples, more than two parents and so many other unique ways families are formed, Canada has made the effort to recognize all of those diverse family styles, which allows for Canadian parents to understand their own rights.

Third, we are here to help you understand your rights when it comes to Canadian law, which should take out both the guesswork as well as any confusion that you may have. So let’s dive in and look at those rights that you have as Canadian parents.

Canada’s a Huge Country; Does that Mean the Laws are all the Same?

The answer is a bit harder to answer. While there are many overlapping laws that are applied by federal court rulings, it is important to note that many provinces have their own laws and rules that you should be aware of for your individual place of residence. As this is a much more in-depth look, for the sake of this article, we will focus on more of the broad rights that affect all Canadian parents.

However, before we do, it should be noted that all provinces, as well as all territories, have child support guidelines as drawn out by the federal government with the exception of one—Alberta. That being said, there are some guidelines that are province based so how child support is calculated will depend on amendments provinces and territories have made to the child support guideline or if they are relying heavily on a province drafted guideline.

The New Divorce Act in Canada

On March 1, 2021, the divorce act was changed to reflect new shifts in language. This includes remove the terms custody and access and switching to parenting arrangements to remove the indication of ownership of children with the old terms. Not all provinces and territories have adopted the terminology for parenting arrangements but Canadian parents should expect this to happen Canada wide eventually.

Who is a Parent?

Under Canadian law, a parent is the mother and any other parents who are listed on the birth certificate or adoption papers. In Canada, with the exception of Alberta that still has it set at two, up to four individuals can be listed on a birth certificate; however, five or more can be added to a child’s birth certificate with a court order. These birth certificates are to reflect the ever changing dynamics of Canadian families to include same sex couples, donor parents who are involved with raising the child but may not be living with the child, or surrogate parents, etc.

It should be noted that in the case of three or more parents, there are usually parental agreements where donors and surrogates sign off on parental responsibility but are still on the birth certificate. In these events, they would not be part of the parenting arrangements as per their original contract and agreement.

The multi-parent birth certificates allow for same sex partners, and those using surrogates, to be included on the birth certificate whether they have a biological tie to the child or not.

In addition to biological parents, stepparents can apply for parenting arrangements in the event of separation or divorce. They can also be responsible for child support depending on the length of time they were in the child’s life and other conditions.

What is a Parenting Arrangement?

A parenting arrangement is a plan that you make with your partner, whether through mediation, on your own or with the court, in regard to the care of your children. With parenting arrangements, the same laws apply regardless of whether or not you and your ex partner were married or unmarried at any time in your relationship. That means that unmarried Canadian parents have the same rights as those who were married.

With the parenting arrangement, parents will agree on where the children will live, what the shared visitation will look like and who will be the primary caregiver. In addition to living and visitation arrangements, where the kids go to school will also be decided in the parenting arrangement.

Finally, both parents will agree on important decisions for the children such as education, medical care and religion. In parenting arrangements, if any of these things were to change, both parents need to reach an agreement on it that is reflective of the best interests of the child.

What are the Best Interests of the Child?

Although this article is looking at the rights of Canadian parents, one of the main takeaways is that the rights of the parents are secondary to the best interests of the child. For example, if a judge deems that contact with a parent would not be in the best interest of the child, that parent will not have contact.

With best interests, the following parameters are considered by the courts:

1. The child’s physical, psychological and emotional well-being is the primary concern of all courts.
2. The child’s safety and security are additional primary concerns.
3. There should be consideration and access for healthy relationships with each parent as well as siblings and extended family members such as grandparents as long as the primary concerns are met and contact will have benefits for the child’s well-being.
4. All arrangements should lead to stability for the child’s needs in regard to their age and development.
5. Care arrangements should be reflective of both current separation and any future shifts due to divorce.
6. In any parenting arrangement, culture, spiritual upbringing, heritage, and religion should be respected and included in the arrangement. This is especially important in families with mixed heritage and cultures.
7. Indigenous rights need to be a primary concern.

Basically, the child’s culture, heritage, age and development need to be considered so the child does not suffer any negative loses of those things during separation and divorce.

As parenting arrangements are for a healthy transition from one to two homes for the children, some rights of the parents may not be considered during this time. In the end, Canadian parents need to be aware of the laws for their individual province and should come to the parenting arrangement with the best interests of the child. If they do both of those things, they should not have too many obstacles when sorting out the best arrangements for your children, yourself and one that works for your ex partner as well