Changes to Ontario’s Family Law

Overview of the Changes

In response to public outrage about a few unusual incidents related to cases before the Family Courts, the Ontario Government has passed the Family Statute Amendment Act.  Only some parts of the Act have been declared in force.  The entire law will be in force at an unspecified date in 2009.  The makes three changes to Ontario Family Law.  First, it changes “restraining/non-harassment Orders” made in Family Court.  Second, it requires people seeking custody or access to file new court court documents requiring extensive information with the court.  Third, it make specific provision for courts to make orders controlling how people parent children in their care.

Tougher Restraining Orders

The changes to “restraining orders” are designed to “toughen up” the Orders and extend more protection to more people. These provisions are already in force.  Under the old provisions, it was only possible to get a “Family Law” restraining order against a person you had lived with for more than three years or with whom you have a child.  Under the new Act, you can get a restraining order against a person you lived with for any period of time (maybe even only a day) or with whom you have a child. The changes have also created standard court orders for restraining orders. They will set out exactly who is not allowed to communicate with whom, where a person is not allowed to go and if there will be any exceptions.  The clarity of these new orders is important because the Ontario Government removed the Provincial Offence for violating restraining orders.  The only way for the police to enforce a restraining order is by laying a charge under s. 127 of the Criminal Code.  The changes also include new provisions to allow courts to make orders limit contact between parents, or parties to the court case that are less than restraining orders and which will not be police enforceable.

New Extensive Court Documents for Custody Cases

Public outrage over the death of a child placed in the custody of a parent’s friend resulted in significant new requirements for documents to be filed with the court.  If you are thinking about starting a case for custody or access, you should do it now because the new requirements are onerous and will involve a lot of effort by both you and your lawyer.   

The changes require all the parties to file a parenting affidavit that includes a lot of detail about the children and a detailed parenting plan.  If a party is not a parent, he or she will also have to file a criminal record check, provide every address where he or she lived since birth, and provide authorization for every children’s aid society in every jurisdiction where that person has ever lived to search their records and provide information to the court.

This will be a very labour intensive process.  It was designed to make sure that judge’s are not missing any information that may be important in making a custody or access order, but which the parties do not want the judge to know.

New Terms for Parenting Orders

The last change is not really much of a change at all.  Section 28(1) of the Children’s Law Reform Act has been amended to allow orders prohibiting:

  1. speaking disparagingly about the other parent in front of the child,
  2. changing a child’s residence, school or daycare with the other parent’s consent or a court order,
  3. the removal of a child from Ontario;
  4. one parent from withholding a child’s passport or health card,
  5. withholding consent documents to allow the parent to get information about a child and
  6. a parent from blocking contact between a child and another person.  

The courts have made these orders as part of Custody Orders for a long time.  This change may simply be designed to assist parents in understanding that a judge can make these types of orders.

It is far from clear how judges will interpret these new provisions. Everyone involved with Family Law cases is interested in seeing how these new provisions will work in practice. 

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