Ask an Ontario lawyer for custody of your children, and you will get a polite correction. Parliament took that word out of the federal divorce statute, and Ontario followed. What replaced it changes how you draft an application, what a judge weighs, and what the final order says.
Canadian law now splits the old idea into two. Decision-making responsibility covers the big calls about a child’s health, education, culture, and significant activities. Parenting time covers the hours a child spends in each person’s care. A judge allocates both in a parenting order, and one test governs the whole exercise: the child’s best interests.
| What people still say | What the statute says today | What it settles |
| Custody | Decision-making responsibility | Health care, schooling, religion, and spirituality are major activities |
| Access | Parenting time | The schedule and who the child is with on a given day |
| Access for a grandparent | Contact order | Time with someone who is not a parent |
| Primary residence | The majority of parenting time | More than 60 percent of the year with one parent |
| Fifty | Shared parenting time | At least 40 percent of the year with each parent |
| Moving away | Relocation | A move that would reshape the child’s relationships |
Key takeaways
- The old vocabulary left the Divorce Act on March 1, 2021. Ontario’s Children’s Law Reform Act changed on the same day.
- Decision-making responsibility answers who decides. Parenting time answers when the child is with you.
- One test applies, and safety sits at the top of it.
- A relocation needs 60 days of written notice, and the other parent gets 30 days to object.
- Cross the 40 percent parenting time threshold, and the child support calculation changes.
What Is Custody?
In Canadian family law, “custody” is the older term for the authority to make important decisions about a child’s care and upbringing. Since the 2021 changes to the federal Divorce Act, new parenting orders generally use the term “decision-making responsibility” instead.
This responsibility can cover major decisions about a child’s health care, education, cultural, religious, or spiritual upbringing, and significant activities. It is separate from parenting time, which determines when and for how long a child is in each parent’s care. Courts make these decisions based on the child’s best interests, with safety, relationships, caregiving history, the child’s views, and each parent’s ability to cooperate among the factors considered.
The words the Divorce Act deleted
Bill C-78 rewrote the parenting sections of the Divorce Act. According to the Department of Justice Canada’s guidance on parenting arrangements, the Act no longer uses the old terms at all. Courts have been allocating decision-making responsibility and parenting time since March 1, 2021. Older orders stay valid in their original wording. New ones drop the word.
Here is the translation, term by term. The change is not cosmetic. Judges write orders in these words, court forms use them, and an application drafted in the old language reads as dated before anyone opens it.
Which statute governs you?
Two different acts can apply, and which one you are under depends on your marital status rather than your postal code. Married spouses who are divorcing or already divorced fall under the federal Divorce Act. Unmarried parents in Ontario, and married parents who separate without filing for divorce, come under the Children’s Law Reform Act.
Ontario did not lag. The Moving Ontario Family Law Forward Act, 2020, renamed the same concepts, added a contact order for non-parents, and brought in a matching relocation regime. Both statutes now speak the same language, which was the point of doing it together. Our other Ontario family law explainers cover the neighboring pieces, including separation agreements and support.
How a judge decides: the child’s best interests
One test runs through every parenting decision in Canadian family law. A judge asks what suits this particular child, not what feels fair between two adults.
Safety comes first.
Subsection 16(2) puts one consideration above all others: the child’s physical, emotional, and psychological safety, plus their security and well-being. Every other factor sits underneath that. A schedule can look tidy on paper and still fail this test.
The factors the Act lists
Subsection 16(3) gives judges a checklist, and it is long on purpose.
- The child’s needs, given their age and stage of development.
- The nature and strength of the child’s relationships with each parent, with siblings, and with grandparents.
- Each person’s willingness to support the child’s relationship with the other parent.
- Who has been carrying the load, meaning the history of care?
- The child’s own views and preferences are weighed by age and maturity.
- Cultural, linguistic, religious, and spiritual upbringing, including Indigenous heritage.
- Each person’s ability and willingness to meet the child’s needs.
- How well the parties communicate and cooperate on matters affecting the child.
- Any family violence and any civil or criminal proceeding relevant to the child’s safety.
When there is family violence
This is where the 2021 amendments bite hardest. The Act defines family violence broadly, and it reaches conduct that never produced a charge. Subsection 16(4) then tells a judge what to look at.
- The nature, seriousness, and frequency of the conduct.
- Any pattern of coercive and controlling behavior.
- Whether the child was directly or indirectly exposed to it.
- Whether anyone in the household fears for their safety.
- What the person responsible has done to prevent further violence.
A court can still order shared authority after a finding of violence. In practice, it rarely does, because the Act asks whether two people can cooperate at all.
Sole and joint custody, translated
Three shapes cover most parenting orders.
- Sole decision-making responsibility. One parent makes the major calls and usually keeps the other informed.
- Joint decision-making responsibility. Both parents decide together, which only works where they can hold a conversation.
- Divided or parallel responsibility. One parent handles health, the other handles education, so neither holds a veto over everything.
What people still call joint custody is the middle option, and judges scrutinize it hardest. Two things surprise parents here. Sole authority does not mean the child stops seeing the other parent, because the schedule is a separate question entirely. And joint authority is not a prize for good conduct; a judge grants it when two adults can genuinely reach a decision together.
What parenting time really means
Parenting time is more than a visit with a nicer name attached to it. During your parenting time, you hold the daily authority. Subsection 16.2(2) gives the person caring for the child exclusive authority over day-to-day decisions, unless the order says otherwise. Bedtime is yours to set. The choice of school is not.
- An order can set a detailed schedule or leave the timing flexible, where parents manage it well.
- Section 16.4 lets you request information about the child’s health and education, including from a school or a doctor, unless a court orders otherwise.
- Subsection 16(6) tells a court to give a child as much time with each parent as fits that child’s best interests. It replaced the old maximum contact principle, which many pages still quote.
Moving with a child: the 60-day notice
Relocation is the fight that catches people off guard, and the rules are strict. If your move would significantly affect the child’s relationship with anyone who has parenting time, the Act treats it as a relocation. You owe a written notice at least 60 days before the expected date of the move. Ontario’s Children’s Law Reform Act sets the same 60-day requirement in section 39. 3.
- The notice states the expected date, the new address and contact information, and a proposal for how parenting time would work afterward.
- The other person has 30 days to object, using the prescribed form or a court application.
- If nobody objects within 30 days and no order blocks the move, the relocation can proceed.
- A court can waive notice where there is a risk of family violence.
Who carries the burden of proof depends on the schedule you already have. Section 16.93 splits it three ways. Where parenting time is substantially equal, the moving parent must prove the move suits the child. Where the child spends the vast majority of time with the moving parent, the objecting parent has to prove it does not. In every other case, both sides carry it.
How the schedule changes child support
Parenting arrangements and money are linked, and parents often discover this late. Section 9 of the Federal Child Support Guidelines applies once each parent exercises at least 40 percent of parenting time over the course of a year. Below that threshold, the table amount for the paying parent normally governs, expressed in CAD. Above it, a court looks at both table amounts, the increased costs of running two households, and what each parent can afford.
That 40 percent line explains why parents argue so hard over a single overnight. If you want the arithmetic behind the number itself, our guide to how child support amounts are built in Canada walks through the tables and the setup.
Put it in writing before a judge has to
Most separating parents never see a trial. They write a parenting plan, file it as a consent order, or fold it into a separation agreement and get on with raising the child. Draft it in the current statutory language.
A plan written in the old words still binds you. It also invites an argument later about what the parties meant, and enforcement gets slower when your wording does not match the forms. Name the decisions each of you makes. Set out the schedule, including holidays. Say what happens when someone wants to move.
Conclusion
Canadian family law no longer uses “custody” and “access” as the primary terms for new parenting orders. Instead, courts focus on decision-making responsibility and parenting time, with the child’s best interests guiding every decision. Factors such as safety, family relationships, the history of care, the child’s views, relocation, and each parent’s ability to cooperate can all affect the outcome.
Understanding these rules and using current legal terminology can make parenting plans and court applications clearer. If you are separating, facing a parenting dispute, or planning to relocate with a child, getting legal advice early can help you understand your rights, responsibilities, and available options.
FAQ
Not in a new federal parenting order. Judges allocate decision-making responsibility and parenting time instead. The old word survives in everyday speech, in orders made before March 2021, which remain fully valid, and in some provincial statutes that took a different route.
No. Neither statute names a default parent nor a starting presumption. What tends to matter is the history of care, so the person who has been doing the school runs and the medical appointments often keeps doing them.
There is no magic birthday in the legislation. A judge weighs the child’s views according to age and maturity. In Ontario, the Office of the Children’s Lawyer may be asked to put those views before the court through a lawyer or a clinician.
No. The two obligations run separately, and withholding a child to force a payment usually damages your own position. Enforcement of support runs through the Family Responsibility Office in Ontario.
You can write a parenting plan and file nothing. It binds you as a domestic contract, and a court can turn its terms into an order later if you need enforcement. Get independent legal advice before signing, because a contract signed without it is easier to attack.
