Parenting Time and Decision-Making in Canada (Formerly Custody and Access)

Canada no longer uses the terms "custody" and "access" under the federal Divorce Act. Since March 1, 2021, courts make parenting orders that allocate decision-making responsibility, which covers major decisions about a child, and parenting time, which is the time a child spends in each parent's care. Every decision is based on one test: the best interests of the child, with the child's physical, emotional and psychological safety, security and well-being as the primary consideration. There is no automatic presumption of 50/50 parenting time.

This article is part of the guide to family law in Canada.

The short version

• "Custody" is now decision-making responsibility, and "access" is now parenting time.
• Courts consider only the best interests of the child.
• A child should have as much time with each parent as is consistent with the child's best interests, but equal time is not presumed.
• Family violence, including coercive and controlling behaviour, is a major factor.
• Most parents settle arrangements in a parenting plan without a judge.
• A parent planning a relocation must give at least 60 days' written notice.

Old Terms and New Terms

Orders made before March 1, 2021 still use the old language, and they are read under the new terms. Most provinces have updated their own laws for unmarried parents to use similar language. In Ontario, for example, the Children's Law Reform Act now uses decision-making responsibility and parenting time.

The Best Interests of the Child

Under section 16 of the Divorce Act, the court must consider all factors related to the child's circumstances, including:

• the child's needs, given their age and stage of development, such as the need for stability
• the nature and strength of the child's relationship with each parent, siblings, grandparents and other important people
• each parent's willingness to support the child's relationship with the other parent
• the history of care of the child
• the child's views and preferences, given due weight according to age and maturity
• the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
• any plans for the child's care
• each person's ability and willingness to care for and meet the child's needs
• each person's ability and willingness to communicate and cooperate on matters affecting the child
• any family violence and its impact
• any civil or criminal proceeding, order or condition relevant to the child's safety and well-being

Past conduct is not considered unless it is relevant to a person's parenting time, decision-making or contact.

Family violence

When considering family violence, courts must look at its nature, seriousness, frequency and timing, whether there is a pattern of coercive and controlling behaviour, whether the child was directly or indirectly exposed, the harm or risk of harm to the child, and any steps the person has taken to prevent further violence. Family violence often makes shared decision-making inappropriate.

Is there a presumption of 50/50?

No. The Divorce Act says that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. Justice Canada has explained that the right amount of time depends on each child's circumstances. Equal parenting time is common when it works for the child, but it is not the default.

Types of Arrangements

Decision-making responsibility

• Joint: parents make major decisions together.
• Sole: one parent makes major decisions, often after consulting the other.
• Divided: each parent has responsibility for certain areas, such as one for health and one for education.
• Parallel: each parent makes decisions on their own during their parenting time, used in high-conflict situations.

Every parent with parenting time can make day-to-day decisions while the child is in their care. Anyone with parenting time or decision-making responsibility is generally entitled to ask for and receive information about the child from third parties such as schools and doctors.

Common parenting time schedules

Holidays, school breaks, birthdays and special occasions are usually set out separately.

Parenting Plans

Most parents settle parenting arrangements without a judge. A parenting plan is a written agreement setting out how parents will care for their children. Under the Divorce Act, a court must include a parenting plan agreed to by the parents in its order, with any changes the court considers necessary in the child's best interests.

A good parenting plan covers:

• the regular schedule and holiday schedule
• how major decisions will be made
• how parents will communicate, such as a co-parenting app
• transportation and exchanges
• travel, passports and consent letters
• how the plan will be reviewed as children grow
• how disagreements will be resolved, such as mediation

Justice Canada publishes a free parenting plan tool and checklist.

Relocation

The Divorce Act distinguishes between a change of residence and a relocation. A relocation is a move likely to have a significant impact on the child's relationship with another person who has parenting time, decision-making responsibility or contact.

• A parent planning a relocation must give at least 60 days' written notice before the move, using the federal Notice of Relocation form or a notice with the required information.
• The other person can object within 30 days of receiving the notice, using the Objection to Relocation form or by applying to court.
• If no one objects within 30 days and there is no court order preventing it, the relocation can generally proceed.
• Courts can change the notice rules, for example where there is family violence.

Who must prove what depends on the current arrangement:

Ontario, British Columbia and other provinces have similar notice rules for unmarried parents under provincial law.

Changing a Parenting Order

A parenting order can be changed if there has been a change in the child's circumstances since the order was made. Common reasons include a move, a change in a parent's work schedule, a child's changing needs as they grow, or concerns about safety. Parents can also agree to changes and ask the court to make a consent order.

Frequently Asked Questions

At what age can a child decide where to live?

There is no fixed age in Canadian law. A child's views and preferences are considered and given more weight as the child gets older and more mature. Older teenagers' wishes are often very influential, but they are still one factor among many.

Can a parent refuse parenting time because child support is unpaid?

No. Parenting time and child support are separate. Each has its own enforcement process. See child support in Canada.

Do grandparents have rights?

Grandparents can apply for a contact order under the Divorce Act, with permission of the court, and many provinces allow similar applications. The court decides based on the child's best interests.

Do unmarried parents follow the same rules?

Unmarried parents follow provincial or territorial law rather than the Divorce Act, but most provinces apply the same best interests test and similar terms.

What happens at a first meeting with a family lawyer about parenting?

The lawyer will usually ask about the history of care, the children's needs, any safety concerns and what each parent is proposing. Bring school and medical information, any existing agreements and a summary of the current schedule. See questions to ask a lawyer.

Need help with a parenting arrangement? Search LawyerDirectoryCanada.ca for family lawyers by province and city, or see mediation vs going to family court.

Sources

• Divorce Act, section 16, Justice Laws Website, Government of Canada
• The Divorce Act Changes Explained: parenting time consistent with best interests, Department of Justice Canada
• The Divorce Act Changes Explained: parenting time definition, Department of Justice Canada
• Changes to the Divorce Act Explained, Department of Justice Canada
• Moving after separation or divorce?, Department of Justice Canada
• The Divorce Act Changes Explained: relocation factors, Department of Justice Canada
• Making appropriate parenting arrangements in family violence cases, Department of Justice Canada