As of March 1, 2021, the terms “custody” and “access” have been removed from the federal Divorce Act. Those terms have been replaced with language that looks at parents’ responsibilities for the children. The significant changes to family law are intended to change not just the way we talk about these concepts—but also the way we think about parenting after separation.
Reason for the Move Away from “Custody” and “Access”
Child custody and access are among the most emotionally charged and heavily contested matters in family law. They account for a disproportionately high number of court cases and take longer to resolve. “Custody” has connotations of ownership and viewing children as property. The terms “custody” and “access” also reinforce a winner-loser mentality where the “winner” is the parent who gets custody, and the “loser” is the access parent.
Many family lawyers have long been of the view that a change in language could help reduce parental conflict and encourage parents to focus on the best interests of the children. In fact, BC’s Family Law Act already uses the child centered terminology of “guardianship,” “parental responsibilities,” “parenting time,” “parenting orders” and “contact orders.”
New Terminology in Canada’s Divorce Act
The March 1, 2021 amendments to the Divorce Act remove the terms “custody” and “access” and introduce concepts and words that focus on relationships with children:
Custody is now called DECISION-MAKING RESPONSIBILITY. This is defined as meaning the responsibility for making significant decisions about a child’s well-being, including in respect of health; education; culture, language, religion and spirituality; and significant extracurricular activities. Decision-making responsibility can be divided in the following ways:
SOLE – one parent has all the decision-making responsibility;
JOINT – both parents have decision-making responsibility; or
DIVIDED – each parent is responsible for different areas, e.g. one parent makes health decisions and the other parent makes decisions about religion.
Access for any parent or step-parent is now called PARENTING TIME. There is no more dividing up of custody or access between parents. Under the new Divorce Act, both parents have parenting time unless there is a reason it is not appropriate. The Act also makes it clear that there is no presumption of equal parenting time; instead, the governing rule is that a child should spend as much time with each parent as is consistent with the child’s best interests.
So, for example, under the new Divorce Act, the child might live mainly with one parent, but the parents share decision-making responsibility. Or, one parent may have the right to make all significant decisions about the child, but parenting time is such that the child spends equal amounts of time with both parents.
Regardless of the allocation of decision-making responsibility and parenting time, the Divorce Act is clear that a person who has parenting time or decision-making responsibility is entitled to information about the child. Such a person is entitled to request and receive information about the child’s well-being from anyone else with parenting time or decision-making responsibility, and from anyone else likely to have information about the child (e.g., doctor, teacher).
What Is “Parenting Time”?
Parenting time is the period of time the child spends in the care of a person under a parenting order, whether or not the child is physically with that person during all of that period. In other words, it includes time when the child is not physically in the presence of that person, such as when the child is at school or in daycare.
Each person with parenting time has the authority to make day-to-day decisions about a child when the child is in their care, unless a court orders otherwise. Day-to-day decisions include matters such as a child’s bedtime, meals, chores, etc. A parent is permitted to make these day- to-day decisions during their parenting time regardless of whether they have “decision-making responsibility” for significant decisions (as discussed above).
Parenting Orders under the Divorce Act
Under the new Divorce Act, “custody orders” and “access orders” are now called PARENTING ORDERS. Parenting orders are only available for those who either have or wish to take on the parental responsibilities associated with the care and upbringing of a child (either or both spouses, a parent, and any person currently in or seeking a parental role in the life of a child). A person who is not a parent, such as a grandparent, must apply for a CONTACT ORDER instead of what used to be called an access order, and must seek leave of the court to do so.
In a parenting order, the court can allocate decision-making responsibilities and parenting time. The Divorce Act gives the court the discretion to determine how specific the parenting order needs to be. For example, the parenting order can contain a clear schedule for parenting time that specifically outlines the periods in which each spouse is primarily responsible for the child. In other cases, the court may determine that a detailed schedule is not appropriate or necessary.
A parenting order can also address changes of residence, relocation, and how communication is to occur between parent and child. A parenting order can specify that the child can Skype or FaceTime with one parent while in the care of the other parent.
Get Trusted Legal Advice on Parenting after Separation
If you have children and are facing separation or divorce, get the advice you deserve. Consult Valerie M. Little Law Corporation at your first opportunity to make sure your rights and those of your children are protected. Ms. Little will make your children a top priority and help you move forward to resolve your parenting issues.