Parenting arrangements for orders or agreements made before the new law comes into force
The laws concerning custody and access under the Divorce Act have changed. However, these changes do not apply until the new law comes into force. Due to extraordinary circumstances related to the COVID-19 pandemic, the Government of Canada deferred the coming into force date of changes to the Divorce Act to March 1, 2021.
This page provides information about the laws that apply if your court order or agreement concerning custody and access was obtained before the new law comes into force.
If you plan to obtain or change your order or agreement after the new law comes into force, please see Parenting arrangements for orders or agreements made or changed after the new law comes into force.
On this page
- Parenting arrangements
- Best interests of the child
- Factors judges consider
- Custody and access
- Custody arrangements
- Parenting plans
- Changing my order
- What does my old order mean under the new Divorce Act?
The custody and access provisions of the Divorce Act have changed. However, these changes do not apply until the new law comes into force. Due to extraordinary circumstances related to the COVID-19 pandemic, the Government of Canada deferred the coming into force date of changes to the Divorce Act to March 1, 2021. Please keep in mind:
- For existing court orders or agreements: you can continue to rely on your court order or agreement after the new law comes into force. The changes in the law are not a reason for a change to your existing order.
- Applying for a new court order: if you apply for a court order and the new law comes into force before you get the order, the new Divorce Act rules will apply.
- Changing your existing court order or agreement: if you want to change your court order or agreement after the changes to the law come into force, the new Divorce Act rules will apply to your arrangements.
A parenting arrangement is a plan that you or a court make for the care of your children after you separate or divorce. This includes arrangements about where the children will live, and who will be responsible for making major decisions about issues such as where the children will go to school, their religious education (if any), their medical care, and so on.
The Divorce Act has certain rules about parenting arrangements for parents who divorce. The provinces and territories generally have similar rules for unmarried parents and for married parents who separate but do not apply for a divorce.
Under the old Divorce Act, parenting arrangements were referred to as “custody” and “access.” When the changes to the Divorce Act come into force on March 1, 2021, these terms will be replaced with new language that focuses on parents’ responsibilities for their children and the tasks required to care for the children. A province or territory’s laws may use other words to refer to parenting arrangements.
Best interests of the child
You can agree to any type of parenting arrangement, but you should focus on what is in the best interests of your children. If you cannot agree on parenting arrangements and a judge must decide for you, the judge’s decision must be based only on the best interests of the child.
Factors judges consider
A judge will look at all of the circumstances of your particular child and family to determine what is in your child’s best interests, such as your child’s:
- age and needs
- views and preferences
- relationship with each parent
- care arrangements that existed before the separation
- relationship with siblings, grandparents and other important people
A judge will also look at the parents’ ability to:
- care for the child
- communicate and cooperate on issues concerning the child
A judge will always consider the presence or risk of family violence and its impact on parenting abilities or the child’s well-being.
The new Divorce Act will provide best interests of the child factors. You may find it helpful to review these factors to determine what is best for your child in your particular situation. For more information, please see the “Best interests factors” section.
The judge will also apply the principle that a child should have as much contact with each parent as is in the child’s best interests. In applying this principle, the court will consider the willingness of each parent to support the child’s relationship with the other parent. A parent’s past conduct may not be taken into account unless it affects their ability to act as a parent to the child.
Custody and access
“Custody” and “access” are two terms used to explain different aspects of parenting arrangements. “Custody” is the legal term in the old Divorce Act. “Custody” refers to both the parenting schedule for your child, and how decisions about your child will be made. When you get a divorce, there are different types of custody.
If you have “sole custody” (described below), the other parent normally has “access” time with the child. Unless the court orders otherwise, the parent with access is also entitled to ask for and be given information about the health, education and welfare of your child. In some cases, other people who are important to your child, for example their grandparents, may be granted access.
Sole custody means that only one person may make important decisions about a child. Usually, if you have sole custody, your child lives mainly with you, and the other parent has access.
Joint custody means that two or more people make major decisions about the child together. Joint custody is about sharing decision-making authority.
Joint custody does not necessarily mean that your child lives equal periods of time with each parent. If you and the other parent share decision-making authority, a variety of living arrangements are possible. Your child may live with one parent most of the time or with each parent for relatively equal amounts of time.
Shared custody is a term that is normally used for child support purposes. It refers to situations where your child spends at least 40 percent of the time with each parent. For example, your child may spend 40 percent of the time with one parent and 60 percent of the time with the other, or 50 percent of the time with each parent.
It is possible to have both joint custody and shared custody of a child. In this situation, the child would spend at least 40 percent of the time with each parent, and the parents would make important decisions about the child jointly.
It is also possible to have joint custody without having shared custody. Parents can share decision-making authority regardless of where the child lives. In some cases, they may have joint custody even if a child lives exclusively with one parent.
For information on how “custody” and “access” orders will be dealt with under the new law please see the “Parenting orders” section.
You may find it very helpful to create a parenting plan to set out the arrangements that are in the best interests of your child.
A parenting plan may be very general, simply setting out a schedule for when your child will be in the care of each parent and who will make decisions about your child. It may also be very specific, setting out defined areas of decision-making authority for each parent, detailed schedules for your child’s activities and holidays, communication, travel and other aspects of a child’s care.
Your province or territory has family justice services such as parenting information sessions that you may find very useful in coming up with a parenting plan.
For more information about parenting plans, please see the following online tools on the Department of Justice Canada’s website that help parents develop a parenting plan:
Parenting Plan Checklist
This tool highlights practical issues to consider when developing a parenting plan.
Parenting Plan Tool
This resource includes an interactive Parenting Plan Tool to develop a personalized parenting plan.
Changing my order
To make a change to a Divorce Act order, parties must show that there has been an important change in their life or that of their child. This is called a “change in circumstances” in the Act. The changes to the Divorce Act are not a change in circumstances.
If you have a custody and access order and you want to change it after the new law comes into force, then the new rules will apply to your arrangements. For example, if you want to change your court order to change the time each parent spends with the child, your new order will use the term “parenting time” and the court will consider the new factors to determine the best interests of the child.
What does my old order mean under the new Divorce Act?
Once the new law comes into force, if you have a “custody” or “access” order, the new Act’s provisions tell you what your order is under the new Act:
|Before March 1, 2021||After March 1, 2021|
|Custody||Decision-making and parenting time|
|Access (spouse)||Parenting time|
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