Since March 1, 2021, the Divorce Act has been changed to encourage parents to work together, to prevent family violence, and to better protect the best interests of the child.
The changes explained here only apply to legally married parents who get divorced. They do not apply to common-law couples who separate.
“Custody” and “Access” Replaced by “Parenting Time”
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” and “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. This change helps to reduce conflict between parents and prioritizes the child’s best interests.
Parenting time means the time that a child of the marriage spends in the care of one of the parents. During their parenting time, parents make daily decisions for the child. Even if the divorce judgment says that the child spends more time with one parent than the other, the distinction between “custody” and “access” no longer exists.
Sample Calendar of Days with the Child
Monday to Friday
Saturday and Sunday
One parent has custody of the child
The other parent has access
Parenting time of one parent
Parenting time of the other parent
Requirements to Protect the Best Interests of the Child
The best interests of the child continue to be the key element in determining the parenting time of each parent. Even if the vocabulary is now different, the way to determine parenting time is the same as for determining custody and access. The change doesn’t affect how child support is calculated either.
Before March 1, 2021, the Divorce Act did not define the best interests of the child. Courts could interpret this concept in different ways.
Now, the Divorce Act has a list of factors to consider in determining the best interests of the child. These factors are basically the same ones that the courts were already using, including:
- the child’s well-being,
- the child’s needs based on the child’s age
- the ability and willingness of each parent to meet the child’s needs
- the parents’ ability to work together
Other factors are also considered. Parents must try to avoid getting their child involved in conflicts caused by the divorce.
Better Protection Against Family Violence
Making sure children are not exposed to family violence is an especially important factor in determining the parenting time of each parent. The new version of the Divorce Act provides a definition of “family violence”.
The new definition is very broad. It is not limited to physical or sexual violence. Threats by a family member can now be considered family violence. Some examples of family violence include:
- threats to kill or to hurt someone
- breaking things
- threats to hurt an animal
Family violence is a factor even when it isn’t directed towards the child. It is also a factor when the person being violent is the new spouse of one of the parents.
A Mandatory Warning Before Moving
The new version of the Divorce Act protects parents by preventing one parent from moving with the children without warning the other parent. Before moving, a parent must send a written notice to the other parent who has parenting time with the child. The notice must state the date of the move and the new address.
If the move is significant enough to prevent the other parent from continuing to see the child, the parent who is moving must send the form “Notice of Relocation” at least 60 days before the significant move. The parent who receives the notice and wishes to object to the move has 30 days to send the form “Notice of Objection to Relocation”.
After receiving such an objection, the parent who wants to move must get the court’s approval before moving. The court considers several factors when deciding to approve the significant move or not, including:
- the reason for the significant move
- the impact of the significant move on the child
If the court approves the significant move, it can tell the parents how to split the costs involved in ensuring that the parent who isn’t moving can still afford to have parenting time with the child.