Some terms in the Divorce Act changed on March 1, 2021
Effective March 1, 2021, the federal Divorce Act uses terms similar to those in the BC Family Law Act.
- The terms decision-making responsibility and parenting time replaced "custody."
- The terms contact and parenting time replaced "access."
This page is about what used to be called "custody" under the federal Divorce Act and explains the different laws to consider if you're separating and you have children.
The Divorce Act uses these terms to describe the arrangements parents make for their children when they separate:
- Decision-making responsibility means making important decisions about your child's well-being, including their healthcare, education, religion, culture, and language.
- Parenting time means the time a child spends in the care of a parent. It includes time when the parent is not present, such as when the child is at daycare or school.
Having decision-making responsibility and parenting time means:
- the child is in your care at least some of the time,
- you have the responsibility to make decisions about the child, and
- you have the right to get information about the child’s well-being, including information about the child’s health and education.
You can use the words decision-making responsibility and parenting time if you're:
- applying for a divorce, and
- applying for orders related to your children under the Divorce Act at the same time.
If you and your spouse have already agreed to a plan about parenting time, decision-making responsibility, or contact, you can include it in a parenting order you apply for during your divorce application.
You don’t have to apply for parenting orders under the Divorce Act. You can apply for guardianship, parenting time, and parenting responsibilities under the provincial Family Law Act. Then, you can apply for a divorce under the Divorce Act. That's the most common approach in BC.
If you're not sure which law applies to your situation, see Parenting apart. This page also explains the different terms used in federal and provincial law. Under the Divorce Act, certain non-spouses can ask for the court’s permission to apply for parenting orders. Non-spouses include unmarried parents, unmarried step-parents, and other people who who have (or plan to have) a parental role in the child's life.
Decisions about children can be made jointly by parents consulting one another. Or, decision-making responsibilities can be:
- given to one parent alone, or
- shared so that one parent is responsible for some decisions (such as health and religion), while the other parent is responsible for other decisions (such as education).
Parenting arrangements can be quite flexible. The good thing about that is that you and the other parent can sort out what works best for you both. But you have to be clear with each other about what you're agreeing so you both understand your plans.
Settle your issues out of court
If you think you and the other parent can sort out your parenting arrangements without going to court, see Making an agreement after you separate and Who can help you reach an agreement? for some helpful information about how to do this.
You can reach an agreement with the other parent through negotiation or mediation (with or without a lawyer), or through collaborative law. Or, you can have someone else decide the issue through arbitration. These are all different types of out-of-court dispute resolution.
For online help making parenting arrangements, you can try MyLawBC's Family Resolution Centre. In the Family Resolution Centre, you can work with the other parent to make decisions about your parenting arrangements, and get a professional mediator to help settle any issues that you don't agree on, at no cost to you.
You could also look at the question and answer pathways on MyLawBC to help you sort things out. They take you to personalized action plans for dealing with separation, getting court orders, or dealing with family law forms.
Parenting time and child support
Child support is affected by the type of parenting time you've agreed on. See Child support for more about this.
How decision-making responsibilities and parenting time are decided
Under the Divorce Act, a judge makes decisions based only on the best interests of the child. This means that when a judge is deciding on parenting arrangements, they have to think about what’s best for the child, not for the child’s parents or guardians. This involves considering a variety of factors, including:
- the child’s needs, given their age and stage of development
- the child’s views and preferences
- the child’s relationship with each parent, as well as with siblings, grandparents, and other important people in their life
- the parents’ ability to communicate with one another about parenting matters
- any court action or order relevant to the child’s safety and well-being
- any family violence, substance abuse, or serious mental health issues
When considering these and other factors, the court has to give priority to the child’s physical, emotional, and psychological safety, security, and well-being.
You might not like what the judge decides because it may not match your needs. But, the goal is to have a parenting arrangement that is best meets your children’s needs.