Custody and Access Renamed: What the New Terms Mean in Ontario

If you separated years ago, or you grew up hearing the words custody and access, the newer terms can feel confusing. Court forms, government pages and lawyers now use different language, and it is easy to wonder whether your rights changed along with the words.

This article explains what replaced custody and access in Ontario, what each new term means, who decides what day to day, and what a parenting order can include. It also flags an important point for parents who were never married.

What changed on March 1, 2021

As of March 1, 2021, the federal Divorce Act no longer uses the terms custody or access. Decision-making responsibility replaced custody, and parenting time replaced access. The Ontario Court of Justice glossary confirms that access was replaced with parenting time in March 2021.

Many people still search for the old words, and you will still hear them in conversation and see them in older documents. Under Ontario's government guidance, a parenting order is a legal order setting out decision-making responsibility or parenting time that the court can enforce.

What the two new terms mean

Under the Divorce Act, decision-making responsibility is the responsibility for making significant decisions about a child's well-being. That includes health, education, culture, language, religion and spirituality, and significant extracurricular activities.

Parenting time is the time a child spends in the care of a person named in a parenting order. It counts whether or not the child is physically with that person the whole time. In plain words, the focus is on who has responsibility for the child during that time, not on whether you are in the same room every minute.

Ontario's government guidance uses the same terms for all parents. It describes a parenting order as a legal order setting out decision-making responsibility or parenting time that the court can enforce. Contact is a different idea: it describes time a non-parent may be allowed to spend with a child.

Who decides what, day to day and long term

Parenting time may be set out in a schedule. Unless the court orders otherwise, the person exercising parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. Meals, bedtime and routine matters are examples.

Decision-making responsibility can be allocated to either spouse, to both, to a non-spouse parent or a person standing in the place of a parent, or to any combination of them. Justice Canada describes joint, sole and divided arrangements. In a divided arrangement, each parent decides different areas, for example one decides health and religion and the other decides education. How a court chooses between joint and sole decision-making is a separate topic that depends on the child's best interests.

Unless the court orders otherwise, a person with parenting time or decision-making responsibility may request information about the child's well-being, including health and education information.

What a parenting order can include

A parenting order may allocate parenting time and decision-making responsibility, set requirements for communication between the parties, and provide for any other matter the court considers appropriate. Under this power a court can write video or phone contact, or tailored conditions, into an order.

• It may be made for a definite or indefinite period, or until a specified event, and may impose terms, conditions or restrictions the court considers appropriate.
• It may require that parenting time, or the transfer of the child between parents, be supervised.
• It may prohibit removing a child from a specified geographic area without written consent of a specified person or without a court order.

If you and the other parent submit a parenting plan, the court must include it in the order. The exception is a plan that is not in the child's best interests, which the court need not include and may modify.

Old orders, unmarried parents and next steps

How an older order that uses the words custody or access applies today depends on its wording and your situation, so it is worth confirming with a lawyer. A person subject to a parenting order must comply with it until it is no longer in effect. If an order is not followed without good reason, the court can take action against the person who did not comply, including a fine or jail.

There is an important exception. Parents who were never married, or who are not divorcing, cannot get a Divorce Act order. They need a parenting order under Ontario's Children's Law Reform Act. The provincial wording often follows similar ideas, but you should check the exact text on ontario.ca/laws before relying on it.

• Find your order or agreement and note which terms it uses.
• Check whether you were married and whether a divorce is involved, since that decides which statute applies.
• Read what your order says about day-to-day decisions, information rights and any conditions.
• Keep following the order as written until it is changed.
• Speak to a lawyer if the old wording seems unclear or you want to change it.

Frequently asked questions