Changes to the Divorce Act Explained
Healthcare Professionals
The Divorce Act is Canada’s federal law on divorce. As well as divorce, the Act also discusses parenting when parents are divorcing or divorced. As of March 1, 2021, important changes to the Act affect divorcing or divorced parents of your minor patients.
From 1968 until the March 1, 2021 changes, the Divorce Act used the terms custody and access. In the context of your practice, someone with custody had the right to participate in making decisions about their child’s healthcare. Someone with access had the right to get information about the health and welfare of their child, but not the right to participate in making important decisions about their child.
New language
As of March 1, 2021, the Act uses different terms to talk about parenting when parents are divorcing or divorced.
Decision-making responsibility means the responsibility of a person, usually a parent, for making important decisions about their child’s health and wellbeing.
Someone with decision-making responsibility can make decisions about things like vaccinations, intrusive medical and dental treatments, or participation in mental health programs.
Someone with decision-making responsibility has the right to ask for information about the health and wellbeing of their child.
Parenting time is the time that a child has with an important adult in their lives, usually a parent.
Someone with parenting time has the right ask for information about the health and wellbeing of their child.
Someone with parenting time also has the authority to make day-to-day decisions about their child when they are in their care, for example decisions about meals, bedtimes, homework, discipline and choice of clothing.
Contact is the time that a child has with an adult who isn’t a parent, such as a grandparent or an aunt or uncle.
Someone with contact is not entitled to information about the child and does not have the authority to make day-to-day decisions about the child.
Someone other than a parent may also have decision-making responsibility and parenting time, like a former spouse, a relative, or a long-term caregiver. In this fact sheet, “parent” includes these people as well.
Making decisions about the healthcare of a child
When both parents have decision-making responsibility for their child’s healthcare, they must both agree on healthcare decisions and must both give consent to proposed treatments.
Parents can agree, or the court can order, that they will each have decision-making responsibility over different kinds of decisions. One parent, for example, might have exclusive decision-making responsibility for their child’s healthcare, while the other parent has exclusive decision-making responsibility for their child’s education. A parent with exclusive decision-making responsibility for a child’s healthcare has the right to make healthcare decisions and give consent to treatments without the agreement of the other parent. An agreement or order that divides decision-making responsibility between parents will specify which decisions each parent is responsible for making.
Important questions
When you are speaking with a parent about the healthcare of a child of divorcing or divorced parents, it’s important to be aware:
- whether the patient’s parent is the only person with decision-making responsibility for the child or the only person with decision-making responsibility about healthcare decisions, in which case the parent will have the sole right to make decisions about the child’s healthcare, or
- whether the patient’s parent shares decision-making responsibility for the child with another person, in which case both parents may have all decision-making responsibilities.
A copy of any parenting order or agreement may be included in the child’s medical file.
New language and orders made before March 1, 2021
The changes to the Divorce Act do not change the language used in orders made under the old Act. A parent with custody of a child under an order made before March 1, 2021, including joint custody, still has the right to participate in making important decisions about their child’s healthcare. A parent with access to a child, but not custody, is still unable to participate in making decisions about the child’s healthcare. A parent with custody or access still has the right to ask for information about the health and wellbeing of the child.
The changes to the Divorce Act do not give parents entitlements that they did not have under orders made before March 1, 2021. A parent who was restricted from visiting their child at your hospital or clinic, for example, is still restricted from visiting the child at your hospital or clinic.
| Old language | New language | Meaning |
|---|---|---|
Custody |
Decision-making responsibility and parenting time |
Decision-making responsibility means a parent’s ability to make significant decisions on behalf of a child, and ask for information about the child. A person who has decision-making responsibility is entitled to ask for and be given information about the child. Parenting time refers to the time that a child is under a parent’s care. It includes time when the child is not physically in the care of the parent, such as during school or daycare. A person with parenting time can make day-to-day decisions about a child when the child is with them. |
Access |
Parenting time |
Parenting time refers to the time that a child is under a parent’s care. It includes time when the child is not physically in the care of the parent, such as during school or daycare. A person with parenting time can make day-to-day decisions about a child when the child is with them. A parent can have parenting time without also having decision-making responsibility. A person with parenting time is entitled to ask for and be given information about the child. |
Access |
Contact |
The time someone who is not a parent has with a child under a court order. |
Provincial laws and federal laws
The Divorce Act only applies to parents who are divorcing or divorced. Provincial and territorial laws apply to everyone who is the parent or guardian of a child.
A number of provinces have changed their legislation to use the new parenting language found in the new Divorce Act. For example, Saskatchewan, Ontario, New Brunswick, Prince Edward Island and Nova Scotia all use the new parenting language. Some provinces and territories still talk about custody and access, or use other terms like guardianship or parental authority, in their laws about family breakdown.
In Alberta and British Columbia, for example, the parents of a child are usually the child’s guardians and have parenting time with their child. In Alberta, guardians usually have the powers, responsibilities and entitlements of guardianship over their child, including the right to participate in making decisions about their child’s healthcare. In British Columbia, guardians usually have parental responsibilities over their child, including the right to participate in making decisions about their child’s healthcare.
In these provinces, someone who is not the guardian of a child, including a parent who is not a guardian, may have contact with the child, but will not be entitled to participate in making decisions about the child, including about the child’s healthcare.
Summary
A parent who had custody of a child under the old Divorce Act has decision-making responsibilities as of March 1, 2021. As long as a parent has decision-making responsibility for a child’s healthcare, they are entitled to give instructions, or provide consent, for the care or treatment of a child, activities and special programs. Remember that:
- a parent may have decision-making responsibility for some decisions but not for others; and,
- if both parents have decision-making responsibility, they need to agree on the care or treatment of their child.
Both parents usually have parenting time with a child and the ability to make day-to-day decisions about the child when they are in their care. Anyone with decision-making responsibility or parenting time is entitled to ask for and receive information about the child from third parties who have this information, including healthcare professionals.
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