The Divorce Act Changes Explained

Miscellaneous

Person deemed to have parenting time and decision-making responsibility
(Section 35.4, Divorce Act)

New section

Person deemed to have parenting time and decision-making responsibility

35.4 Unless a court orders otherwise,

(a) a person who had custody of a child by virtue of a custody order made under this Act, immediately before the day on which this section comes into force, is deemed as of that day, to be a person to whom parenting time and decision-making responsibility have been allocated; and

(b) a spouse or former spouse who had access to a child by virtue of a custody order made under this Act, immediately before the day on which this section comes into force, is deemed as of that date, to be a person to whom parenting time has been allocated.
Old section

None.

What is the change

The amendment deems all persons with existing custody orders to be persons with parenting time and decision-making responsibility under the amended Act. Similarly, it deems spouses with access to be persons with parenting time under the amended Act.

Reason for the change

The amendment clarifies the entitlements and responsibilities of parties with existing orders after the current amendments come into force. Parents with access are deemed to have parenting time under the Act. Any person with custody is deemed to have parenting time and decision-making responsibility. In appropriate cases, courts still have discretion to provide that no such deeming will occur.

Section 35.4 does not change the content of existing Divorce Act orders, but rather would help parents better understand these orders, given the change in language.

Section 35.4 does not affect the various rights and responsibilities that parents have outside of the Divorce Act. For example, if they have parental authority under the Civil Code of Québec, which is not affected by a “custody order,” section 35.4 would not change this.

When

March 1, 2021.