What Replaced Custody and Access in Saskatchewan Family Law

If your court order or agreement says custody and access, the words you hear today may sound unfamiliar. The change affects how parents talk about children and how orders are written.

This article explains what replaced the old terms, which laws use them and what to do if you are holding an older order.

This article covers the law of Saskatchewan.

The new words

Saskatchewan has replaced custody with decision-making responsibility and access with parenting time since March 1, 2021.

The two ideas are separate. Having parenting time on a given day is not the same as holding the power to make major decisions.

Which laws use these terms

The Children's Law Act, 2020 (S.S. 2020, c. 2) sets out decision-making responsibility and parenting time for unmarried parents and for married parents who are not seeking divorce. When parents are divorcing, the federal Divorce Act uses the same terms.

Parenting questions that come with a divorce can be heard by a court of the province where either former spouse is habitually resident when the proceeding starts, or where both accept that court's jurisdiction.

The divorce itself has its own residence rule. A court in a province can hear a divorce if either spouse has been habitually resident in that province for at least one year immediately before the proceeding starts. Only one spouse has to meet that test. If two divorce proceedings are started on different days in different courts, the court where the first was started has exclusive jurisdiction.

Does your old order still apply?

Many people hold orders written before the change. The official guidance on the new terms does not explain how older orders using custody and access are treated. Because of that, do not assume your order has been rewritten, cancelled or left untouched.

How your older order is read today depends on your situation, so it is worth confirming with a lawyer before you change how you follow it. A court can vary, rescind or suspend a parenting or contact order, so if the wording no longer fits your family, updating it is an option.

These words also matter for money questions, although child support is separate from decision-making responsibility and parenting time. Child support orders, including interim orders, must be made in accordance with the applicable guidelines. The presumptive amount is the table amount for the paying spouse's province plus any special or extraordinary expenses. Where each parent has at least 40% of parenting time, the amount is set under s. 9 of the Guidelines rather than as the straight table amount. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

• Find your most recent order or signed agreement.
• Note which parts deal with decisions and which with time with the child.
• Check whether it has been changed by a later order.
• Ask a lawyer how the wording is read today.

If you cannot agree on parenting

Parents who have not fully agreed must complete a parenting course; Saskatchewan's Parenting After Separation Program has a standard online course and one for high-conflict families, in English and French. Matters coming to court must attempt family dispute resolution by the close of pleadings, with exemptions for interpersonal violence, child abduction or other urgency.

To the extent appropriate, parties are expected to try to resolve the matters that may be the subject of an order through a family dispute resolution process. In Saskatoon and Regina, Court of King's Bench Family Practice Directive #7 requires a judicial case conference before certain chambers applications and lists compliance with the s. 7-4 dispute resolution requirement among the pre-conditions to seeking an order.

If parents still cannot agree, a judge may order a parenting assessment by a qualified social worker who does not work for either parent, and the report goes to the parents, their lawyers and the court. A court may also order supervised parenting time, for example where there is a history of drug or alcohol abuse or a risk of abduction; supervised visit centres operate only in Regina and Saskatoon.

What to do next

To change a parenting or contact order, a court must find a change in the circumstances of the child, and relocation of a child is deemed to be one. Spousal support is different: to vary it, the court must be satisfied there has been a change in the condition, means, needs or other circumstances of either former spouse since the order or last variation. For parenting orders, a former spouse's terminal illness or critical condition also counts as a change in the child's circumstances. A relocation that a court has prohibited does not by itself count as a change.

Where you file depends on whether an action already exists. Where an action already exists, an application must be filed at the judicial centre where the action was commenced. For a new action, you may generally file at any judicial centre. Family Law Division judges sit in Regina, Saskatoon and Prince Albert.

• Gather your order, agreement and any later changes.
• Update how you describe things in new drafts, using decision-making responsibility and parenting time.
• Consider mediation before applying to court.
• Speak with a lawyer about whether your older order needs to be updated.

Frequently asked questions