By Laura Schemitsch, Canadian Immigration and Refugee Lawyer, Heron Law Offices, originally posted on CILA: Canadian Immigration Lawyers Association on July 24, 2024
I was recently confronted with an interesting intersection of Canadian immigration and family law while preparing a humanitarian and compassionate grounds permanent residence (“H&C PR”) application with an ongoing complex family law matter. The complexity of the ongoing family matter necessitated communicating with my client’s family lawyer about Immigration, Refugee and Citizenship Canada’s (“IRCC”) requirement to provide “Custody Documents.”IMM 5280 the Document Checklist for Humanitarian and Compassionate Considerations was last updated in October 2022: “Custody papers for dependent children from a previous marriage or relationship, if applicable),” is listed as a required identity and relationship document for an H&C PR application.
Guide 5291, last updated June 4, 2024, also instructs Section B of the IMM 5460 Additional Family Information Form to include “any of your children who are in the custody of an ex-spouse, former common-law partner or other guardian.”
After indicating to my client that custody documents were required for the application, they consulted with their family lawyer who then reached out to me for clarification. The family lawyer explained that they could not provide custody documents as this language was outdated and no longer used in the Canadian family law sphere.
Amendments to Canada’s Divorce Act came into force on March 2, 2021, that made significant changes to the Act particularly surrounding the use of the terms “custody” and “access.” The definitions of custody and custody order as previously set out in subsection 2(1) of the Divorce Act were repealed:
2 (1) In this Act,
custody includes care, upbringing and any other incident of custody; (garde)
custody order means an order made under subsection 16(1); (ordonnance de garde)
The Government of Canada explained the reason for this change as follows:
To emphasize the best interests of the child, the Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term “parenting order” replaces “custody order” throughout the Act, for instance. Similarly, the term “contact order” describes an order that sets out time for children to spend with important people who are not in a parental role, such as grandparents. [Emphasis Added]
In addition, the amendments removed the term “accès” from the French version of the Divorce Act:
The terms “access” and “accès” are no longer used in the Act; only the French version of the Act defines the concept of access (accès). To emphasize the best interests of the child, the Divorce Act now features concepts and words that focus on relationships with children, such as parenting, parenting time and contact.
As a result of the amendments, an individual other than a spouse (such as a grandparent), many apply for a contact order under section 16.5 with leave of the court, to visit or communicate with the child.
Under the new subsection 2(1), decision-making responsibility and parenting time are defined as:
decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of
(a) health;
(b) education;
(c) culture, language, religion and spirituality; and
(d) significant extra-curricular activities; (responsabilités décisionnelles)
parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time; (temps parental)
As a result of these amendments, “parenting arrangements” are set out in a parenting plan which is a written documents outlining how parents will raise their children after separation or divorce. These arrangements involve parenting time and decision-making responsibility. As a result of the March 2021 changes to the Divorce Act, the Government of Canada offers a “parenting plan tool” for to develop a personalized parenting plan (although it is not intended as legal advice).
In British Columbia, unless parents have a formal agreement, under the Family Law Act, parents who have lived with a child are both guardians of that child. Only a court order can remove guardianship.
With this additional context, it appears that IRCC’s use of “custody documents” is likely outdated language that may not accurately capture an Applicant’s parenting arrangements as set out above. In my client’s case, the ability to provide evidence of parenting arrangements for the purpose of a permanent residence application is complicated by the fact that there is an ongoing family law matter in court to resolve these arrangements. While I acknowledge that the use of the term custody may be ongoing in other countries, in Canada, the terminology has not been used for several years and could be confusing when an Applicant is attempting to provide recent Canadian family court documents or obtain the required documents from their family lawyer. IRCC might consider reviewing this language used in official document checklists and guides to reflect these important changes to Canada’s Divorce Act.
