Custody or Parenting Time: What the New Words Really Changed

Since March 2021, the Divorce Act no longer speaks of custody or access — but the Civil Code of Québec has not changed its vocabulary at all.

Isabelle walks out of a first meeting with her lawyer in Gatineau, puzzled. She came in to “ask for custody” of her two boys, just as her sister did twelve years ago. Instead, she was told about parenting time, decision-making responsibility and parenting plans. Her partner, however, was never her husband: she learns that in her own file, the words “custody” and “access” remain perfectly valid. She leaves with the feeling that the rules of the game were changed mid-match. In reality, no one changed the rules. The words were changed, and only in some cases. That is why it is worth sorting all of this out before writing anything into an agreement.

What 1 March 2021 actually changed

On that day, significant amendments to the federal Divorce Act came into force. The concepts of “custody” and “access” disappeared from the federal statute. They were replaced by parenting time, meaning the period during which a child is in the care of a parent, and by decision-making responsibility, meaning the authority to make significant decisions about a child’s well-being. A third concept, contact, applies to people other than the parents, such as grandparents. A court no longer makes a custody order, but a parenting order or a contact order.

Parliament’s goal was to move away from a winner-and-loser mindset. Saying “I have custody” implied the other parent had very little; speaking of how parenting time is allocated changes the starting point of the conversation. A frequent misconception: believing this new vocabulary creates a presumption of a fifty-fifty split. It creates none. The Act provides that a child should spend with each parent as much time as is consistent with the child’s own best interests — which is not at all the same thing as a parent’s right to half the time.

Two vocabularies in the same province

The Divorce Act is federal legislation that applies only to married people who seek a divorce. Parents who were never married fall under the Civil Code of Québec, and the Civil Code still speaks of custody and access rights.

The very concrete consequence, in the Outaouais region as elsewhere: two neighbouring couples, in factually identical situations, will have their judgments drafted in two different languages. A married couple will obtain an allocation of parenting time and decision-making responsibility; an unmarried couple will obtain shared or sole custody with access rights. The practical outcome is usually identical, but the words are not.

The trap is to mix the two vocabularies in a single document. An agreement granting one parent “sole custody and decision-making responsibility” is an invitation to a dispute over interpretation. Choose the register that matches the legislation applicable to your case and stick to it. Quebec’s 2024 reform, which created the parental union, did not harmonize this terminology, and many jurists still regret it.

Parental authority and decision-making responsibility: cousins, not twins

Parental authority is a concept of the Civil Code: it is the right and the duty of parents to have custody of their child, to supervise and to educate the child. It flows from filiation, not from the couple’s status. It is exercised jointly by both parents, married or not, and above all, it survives the separation. A parent who does not obtain custody keeps parental authority and must be consulted on significant decisions. Losing it — what is called forfeiture of parental authority — remains an exceptional measure, reserved for serious grounds.

Decision-making responsibility under the federal Act addresses the same reality, but with a more flexible tool: the court may allocate it to both parents, to one of them, or divide it by subject matter. One parent may be given health decisions and the other education decisions. Another useful point: day-to-day decisions during your parenting time are yours to make, unless the order says otherwise. Bedtime, the dinner menu and the choice of movie are not to be negotiated by telephone every evening.

The classic pitfall is an old one and it has not moved: believing that the parent the child lives with may unilaterally change schools, choose a significant medical treatment or move to another region. That is not the case, either under the Civil Code or under the federal Act. A relocation, moreover, requires written notice of at least 60 days to the other parent, using a prescribed form.

The child’s best interests: the section 16 factors and the parenting plan

Section 16 of the Divorce Act now lists the factors a court must weigh: the child’s needs given the child’s age and stage of development, the nature and strength of the child’s relationships, each parent’s willingness to support the child’s relationship with the other parent, the history of care, the child’s views and preferences, the child’s cultural, linguistic, religious and spiritual heritage, plans for the child’s care, each parent’s ability and willingness to care for the child, the parents’ ability to communicate and cooperate, and finally family violence. Above all of this sits one primary consideration: the child’s physical, emotional and psychological safety, security and well-being.

The parenting plan is the most underused tool of the reform. It is a document in which parents agree on parenting time, decision-making responsibility, the holiday schedule, communications and the method for resolving disputes. If you file one, the court must incorporate it into the order unless it finds that doing so would not be in the child’s best interests. Put plainly: a well-crafted parenting plan puts the pen in your hands rather than leaving it in the judge’s.

Shared parenting time and the child’s voice

Shared custody — or substantially equal parenting time — is neither exceptional nor automatic. The court must always consider it, but sets it aside where the practical conditions are not met: a distance between homes incompatible with school, work schedules, the child’s age, and above all severe and persistent conflict between the parents. An equal division of time presupposes a minimum of functional communication. There is a genuine scholarly debate here: some argue that a parent can thereby block shared time simply by keeping the conflict alive, while others answer that a child placed in the middle of a daily war loses far more.

As for the child’s opinion, the myth of the twelfth birthday dies hard. There is no magic age. The Civil Code requires the court to give the child an opportunity to be heard where the child’s age and power of discernment allow it, and the federal Act lists the child’s views among the factors to consider. The weight given to those views generally grows with age and maturity, but a teenager does not “choose” a parent: the child is listened to, not obeyed. Having a child testify in court is rarely appropriate; the preferred routes are a psychosocial assessment, an interview with the judge, or the appointment of counsel for the child.

Key takeaways

Since 1 March 2021, the Divorce Act speaks of parenting time, decision-making responsibility and contact. The words “custody” and “access” no longer appear in it.
The Civil Code of Québec, which applies to unmarried parents, still uses “custody” and “access”. Do not mix the two vocabularies in the same agreement.
Parental authority survives the separation: the parent without custody keeps the right to be consulted on significant decisions.
There is no fifty-fifty presumption. The Act aims for the maximum time consistent with the child’s best interests, not equality between the parents.
File a parenting plan: the court must incorporate it into the order unless it is contrary to the child’s best interests.
A relocation requires written notice of at least 60 days, using the form prescribed by regulation.