Decision-Making Responsibility and Parenting Time

Recently Parliament updated many family statutes, which will come into effect at various times.  There were significant changes made to the Divorce Act , most of which were to come into effect July 1, 2020.  However, on June 5, 2020, the Canadian government advised that the much-anticipated changes to the Divorce Act will be delayed as a result of COVID-19 to March 1, 2021.

A detailed explanation of all of the changes made by the government to the Divorce Act can be found at the link below:

Below, you will find a simple overview of some of the more significant change to the Act.


Effective March 1, 2021, the language of “custody” and “access” in the Divorce Act are going to be repealed and replaced with language such as “decision-making responsibility” for a child and “parenting time”. 

The term “contact order” was introduced to describe the time a third party, who is not a spouse (i.e., a grandparent), wishes to seek with a child.

Before March 1,2021 After March 1,2021
Custody Decision-making and parenting time
Access (spouse) Parenting time
Access (non-spouse) Contact order

There is no need to change earlier earlier court orders that referred to custody and access again after March 1, 2021, to reflect the new language. Also, these changes to the Divorce Act are not, in and of themselves, a reason to change existing orders relating to custody and access.

Priority of Best Interest of the Child

It is now clear that the “Best Interest of the Child” is the only consideration the court may take into account when making a parenting order. Starting March 1, 2021, the factors in determining a child’s best interest include:

  1. the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
  2. each spouse’s willingness to encourage the child’s relationship with the other spouse;
  3. the child’s views and preferences;
  4. the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
  5. the ability of each spouse to care for the child;
  6. the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
  7. the presence of family violence.

When considering the factors, the court’s primary consideration must be the child’s physical, emotional and psychological safety, security and wellbeing (effective March 1, 2021: s. 16(2) of the Divorce Act).

The “maximum contact” principle between a child and each parent that is consistent with a child’s best interest has been replaced with a new section (s. 16(6) of the Divorce Act):

Parenting Time Consistent with Best Interests of Child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

There has never been a legal presumption that children should equally reside with each parent and the push by different groups to introduce such a provision in the Divorce Act was rejected. A child should have as much time with each parent as is consistent with the child’s best interest.

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