Decision-Making Responsibility & Parenting Time

What are the differences between custody and access, and the new terms decision-making and parenting time?

Custody was a term in the old Divorce Act that referred to the person who is assigned parental decision-making authority in relation to the children, in four major areas:  education, health/medical treatment, religion, and major recreational activities. While both parents have the right to apply for custody and access of a child, the ultimate factor remains the best interest of the child. As of March 1, 2021, the term "custody" will no longer be used and has been replaced with the terms "decision-making" and "parenting". 

Previously, there were several different forms of custody, including:

• Sole custody – one parent is responsible for decision-making.

• Joint custody – parents make decisions jointly. This type of custody is the most common unless it would not be in the best interest of the child in circumstances where there is high conflict between the parents. Joint custody is not necessarily shared parenting. 

• Shared custody – custody and living arrangements are split between both spouses.

• Parallel parenting – each parent is responsible for decision-making in specifically defined areas.

Access was a term in the old Divorce Act that referred to the physical time a parent spends with their children. Sometimes access is referred to by the court, mediators, and parenting coordinators as parenting time, and the terms are often interchangeable. Children who are 12 yearsof age and older can often have their views and preferences considered when deciding the appropriate parenting time with each parent. 

The updated Divorce Act, Family Law Act, and Children's Law Reform Act as of March 1, 2021

As of March 1, 2021, there have been significant amendments to the Divorce Act. The court will now recognize that each child is different and each family is unique. There is no longer a one-size-fits-all approach to parenting. There is a shift in language to a more child-focused approach to describe parenting arrangements. The language of "custody" and "access" have been replaced with language such as "decision-making responsibility" for a child and "parenting time". The term "contact order" will also be introduced to describe the contact time a third-party who is not a spouse wishes to see a child such as extended family including a grandparent. These changes make the law more child-focused, with a greater emphasis on the actual tasks of parenting. The new approach uses "parenting orders" to replace orders for custody and access under the Divorce Act , the Family Law Act, and the Children's Law Reform Act. 

A parenting order sets out each parent's "decision-making responsibilities", which refers to making important decisions on behalf of a child, and "parenting time." Both parents could have parenting time, depending on each child's best interests. The new wording is neutral and emphasizes that both parents will be caring for their child when the child is with each parent. These concepts remove the notion that there is one primary caregiver for children, and the resulting frequent request to be classified as a "primary caregiver" in a court order or separation agreement. This neutral wording also reinforces the idea that there are no "winners" or "losers" in decisions about parenting arrangements in an adversarial court context. 

Court orders that were issued and obtained prior to March 1, 2021 will not have to be changed to reflect the new language. After March 1, 2021, any party seeking to obtain or change a court order will need to use this new language. However, many family law lawyers and judges have previously used this language for quite some time in separation agreements, court orders, and in out-of-court settlements including mediation and collaborative family law.

Concerned parents often ask our lawyers, "Can I make the other parent's time supervised?" In order to be successful in having the court make an order for supervised access there needs to be a clear history of physical and/or emotional abuse, and often with Children Aid Society involvement. Often in these circumstances, professional help is required including the Office of the Children's Lawyer and/or a parenting co-ordinator. Courts are very careful to ensure that supervised access is necessary based on the facts of the case and to ensure that parental alienation syndrome or alienating behaviours are not present. The court is normally of the view that a child benefits from as much access to both parents as possible, unless there is valid reason why such a schedule should not occur. Section 16.1(8) of the Divorce Act addresses the issue of supervision in the context of parenting orders where the transfer of a child between parents or a third-party must be supervised and/or that parenting time must be supervised. 

The best interests of the child takes priority and all parenting time must be consistent with the best interests of the child.

Getting the best results in a child decision-making and parenting dispute is always a delicate balance requiring strategy, experience and skill. Whether you choose to begin negotiations or commence a court proceeding, our team of highly skilled Kitchener family law lawyers has the expertise required to ensure that the issues of decision-making and parenting are resolved in a manner that promotes the best interests of the children and maximizes the chances of successful parenting.

In family law, the best interests of the child is the prevailing factor. Decision-making and parenting arrangements must take into account the best interests of each child, in additional to issues of scheduling and parent availability.  The best interests of the child will now be the only consideration for the court when making a parenting order. When considering factors, the court's primary consideration must be the child's physical, emotional and psychological safety, security and well-being, as outlined at s. 16(2) of the Divorce Act. The principle that wherever possible there should be "maximum contact" between a child and each parent that is consistent with the child's best interests has now been replaced with a new section being s. 16(6) of the Divorce Act. In allocating parenting time, the court shall now give priority to the principle that a child should have as much time with each spouse/parent as is consistent with the best interests of the child.

A review and determination of the best interests of a child will now include:

1. The nature of the child's relationships will each spouse/parent, with their siblings, and with other important people in the child's life.
2. Each spouse's willingness to encourage the child's relationship with the other spouse/parent.
3. The child's views and preferences.
4. The child's cultural and linguistic upbringing, including if the child has Indigenous heritage.
5. The ability of each spouse/parent to care for the child.
6. The presence of any civil or criminal court actions and orders that may be relevant to the well-being of the child.
7. The presence of any family violence.