Parenting Time and Decision-Making Responsibility in Canada

Since March 1, 2021, the federal Divorce Act has not used the words "custody" and "access"; it uses "decision-making responsibility" and "parenting time" instead, with "contact orders" available for people other than parents.

From "Custody and Access" to "Parenting Time and Decision-Making Responsibility"

For decades, the Divorce Act used "custody" and "access" to describe how separated parents shared responsibility for their children. Family law lawyers and judges had long criticized those words for framing parenting arrangements as something a parent wins or loses, rather than as an arrangement built around what a child actually needs.

Bill C-78 amended the Divorce Act, and the amendments came into force on March 1, 2021. The Act now uses "decision-making responsibility" for authority over major decisions in a child's life, and "parenting time" for the time a child spends in a parent's care. For people who are not the child's parents, such as grandparents or other relatives, the Act created "contact orders" instead.

The change was deliberate. The Department of Justice has described the goal as encouraging parents and the legal system to focus on the child's needs and relationships rather than on which parent "gets" the child. Many provinces have since aligned their own family law statutes with the same terms, though older statutes, older court orders, and everyday conversation still commonly use "custody" and "access." If you are looking at an older separation agreement or court order, those terms remain legally valid; they simply describe the same underlying concepts using the old vocabulary.

What Decision-Making Responsibility Covers

Decision-making responsibility is the authority to make significant decisions about a child's well-being, including:

• Health, such as major medical, dental, and mental health treatment decisions
• Education, such as choice of school and participation in special education programs
• Culture, language, and religion, including a child's cultural, linguistic, religious, and spiritual upbringing, and, where relevant, Indigenous upbringing and heritage
• Significant extracurricular activities

A court can give decision-making responsibility to one parent alone, to both parents jointly, or split it by subject area, for example giving one parent responsibility for schooling while both parents share medical decisions. There is no default rule under the Divorce Act that favours sole or joint decision-making responsibility; the court decides based on the best interests of the child in each case.

What Parenting Time Covers

Parenting time is simply the time during which a child is in a parent's care, whether that parent is exercising decision-making responsibility or not. Unless a court orders otherwise, a parent who has parenting time can generally make the ordinary, day-to-day decisions affecting the child during that time, things like meals, bedtime, screen time, and homework, even if the other parent holds sole decision-making responsibility for major decisions.

This distinction matters in practice. A parent can have a substantial parenting time schedule, for example alternating weeks, while decision-making responsibility for major, non-urgent decisions rests with one parent or is shared. The two concepts are tracked and, where necessary, litigated separately.

Contact Orders for Non-Parents

Parenting time is reserved for parents, and for people who stand in the place of a parent. Other individuals who play an important role in a child's life, most commonly grandparents, can instead apply for a contact order, which sets out visitation or communication with the child. A court grants a contact order only if it is in the child's best interests, and it will consider factors such as the existing relationship between the child and the person seeking contact.

The Best Interests of the Child: The Only Test

Under section 16 of the Divorce Act, a court "shall take into consideration only the best interests of the child" when making a parenting order. Bill C-78 codified a non-exhaustive list of factors the court must consider, including:

• The child's needs, given their age and stage of development
• The nature and strength of the child's relationships with each parent, siblings, and other important people
• Each parent's willingness to support the child's relationship with the other parent
• The history of care for the child
• The child's own views and preferences, given their age and maturity
• The child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage
• Each parent's plans for the child's care
• The ability and willingness of each parent to communicate and cooperate on issues affecting the child
• Any relevant civil or criminal proceeding, order, condition, or measure relevant to the child's safety
• Family violence, and its impact on the child and on the ability and willingness of the person who engaged in it to care for and meet the needs of the child

No factor is weighted above the others by the statute itself; a court weighs them together against the specific child's circumstances.

Family Violence Is an Express Factor

Bill C-78 added family violence to section 16 as its own factor, and defined it broadly in section 2 of the Act. The definition covers physical abuse, but also coercive and controlling behaviour, threats, harassment, psychological and financial abuse, and conduct causing a child to witness or be exposed to family violence directed at another family member. A criminal conviction is not required for a court to consider family violence under the Divorce Act; the court looks at the nature, seriousness, and pattern of the conduct, and the risk it poses going forward.

Parenting Plans and Family Dispute Resolution

The Divorce Act encourages separating parents to resolve parenting arrangements cooperatively where it is appropriate to do so, and legal advisors have obligations to inform clients about family dispute resolution options such as mediation, and to encourage the use of a parenting plan. A parenting plan is a written document setting out the parenting time schedule, how decision-making responsibility is allocated, arrangements for holidays and special occasions, how the parents will communicate, and how issues like relocation will be handled.

Family dispute resolution is not appropriate in every case. Where there is a history of family violence or a significant power imbalance between the parents, mediation and similar processes may not be safe or suitable, and the Act does not require parties to use them.

Relocating with a Child

The relocation provisions added by Bill C-78 are among the most practically important changes for separated families. A parent who intends to change the child's residence in a way that would significantly affect the child's relationship with the other parent, or with a person who has a contact order, generally must give written notice, in the form required by the Act, at least 60 days before the proposed move. The notice must include the expected date of the move and the proposed new address.

The other parent (or contact-order holder) then has 30 days to object, using the prescribed form. If a valid objection is filed, the relocating parent generally cannot move the child until either the parents reach an agreement or a court decides the issue. If no one objects and the relevant conditions are met, the move can proceed without a court application.

Who has to prove what depends on the existing parenting arrangement:

Not every move triggers this notice regime. A shorter move, such as relocating within the same city, that would not significantly affect the child's relationship with the other parent is treated as an ordinary change of residence rather than a "relocation" under the Act, though even routine moves are generally worth communicating to the other parent.

Parenting Time Is Not Conditional on Child Support

A common misconception is that a parent can withhold parenting time if the other parent falls behind on child support, or withhold support if parenting time is being denied. Both are wrong, and both can create legal problems for the parent who does it. Child support is the child's right, independent of the parenting schedule, and parenting time is assessed on its own best-interests basis. A parent dealing with unpaid support or denied parenting time should raise the issue directly, including through court enforcement if necessary, rather than withholding the other obligation. See our Canadian child support guide for how support amounts and enforcement work.

Provincial Family Law and the Old Terminology

The Divorce Act applies to married spouses who are divorcing. Parents who were never married, or who are separating without divorcing, are generally governed by provincial or territorial family law instead. Some provinces had already moved away from "custody" and "access" before the federal change; British Columbia's Family Law Act, for example, has used "parenting time," "parental responsibilities," and "guardianship" since 2013. Others, including Ontario, amended their own legislation to line up with the new federal terms around the same time the federal changes took effect.

Because of this patchwork, and because older orders and agreements remain valid, it is common to see "custody" and "access" used in court documents, in casual conversation, and in some provincial contexts even today. The words describe the same underlying ideas; when in doubt, ask a family law professional which regime, federal or provincial, applies to your situation and which terms your specific order or agreement uses.

For the broader separation and divorce process, see our guides to separation agreements in Canada and divorce in Canada, and the Canada family law hub for the full cluster.

Disclaimer: This article is for general information only and is not legal advice. Family law outcomes depend on the specific facts of each case. Consult a licensed family law lawyer in your province or territory for advice about your situation.