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Amendments to the Maintenance and Custody Act

 

The Department of Justice's Family Law Reform Project has recently completed Phase I of it's multi-year review of the province's family laws  resulting in the passing of Bill 39: An Act to Amend the Maintenance and Custody Act with the amendments coming into effect this past February 19, 2013.

 

The Maintenance and Custody Act deals with child custody and access, as well as child and spousal maintenance in situations where the parties are unmarried or where married parties are seeking to have these matters dealt with by the Court but are not seeking a divorce. 

 

The amendments made three significant changes to the Act:

 

1. First, the definition of "dependent child" was amended to remove the age cut-off of children who are over the age of majority but are unable "to withdraw from the charge of the parents or obtain the necessaries of life".  This is similar language to the definition of a "child of the marriage" under the Divorce Act.  Prior to these amendments the Maintenance and Custody Act precluded children who were twenty-four and over and attending post-secondary school from being considered dependent.

 

2. Second, the Act was amended to include a list of factors for courts to consider when assessing the best interests of the child, including consideration of whether there has been any "family violence, abuse or intimidation". Prior to these amendments family violence was only considered in assessing the best interest of the child when it had an effect on the child.  For instance in a situation of spousal abuse, the Court was limited to considering whether the abuse occurred in front of the children or if it in some other way affected the child.  Under the new amendments, the affect that family violence has on the children is one factor of many and will allow the Courts to take a broader view in assessing a situation of family violence on the best interest of the child.

 

3. Finally, the Act was amended with the addition of the principle that a child should have as much contact with each parent as is consistent with the child's best interests often referred to as the "maximum contact rule".

 

The effect of these amendments is yet to be seen as the new Act makes it way through the Courts and is interpreted by our Judges.  An experienced family law lawyer can help you understand how and if these amendments are applicable to your family's situation. 

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