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A significant amendment to the federal Divorce Act is now before Parliament. Bill C-560, “An Act to Amend the Divorce Act” proposes to amend the Divorce Act to change the basis on which custody is awarded in divorce proceedings.

Currently, courts will decide custody based on what is in the ‘best interests of the child(ren)’. Bill C-560 would replace this test with a rebuttable presumption that equal parenting time between spouses should be ordered. In order to rebut this presumption under the proposed amendments, one party must show that “the best interests of the child would be substantially enhanced” by allocating parenting time other than equally.

This is a controversial change to Canada’s divorce legislation. Critics argue that this amendment shifts the focus away from the child to the parents and creates a high threshold to order anything other than equal parenting time. A change to a presumption of equal shared parenting may result in a ‘one size fits all’ approach and may not recognize the fact that one parent may have a history of assuming the role of primary caregiver.

Supporters of the amendment argue that the presumption of equal parenting time will benefit children and will reduce the number of adversarial custody disputes. They argue that sociological research shows that children have better outcomes when their parents have equal access.

If you would like to read the proposed amendments in Bill C-560 for yourself, it is available online here.

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