Clients are often confused about the terms “guardianship”, “custody”, and “parenting time”. There are different terms used for parenting arrangements, depending on which legislation is applicable.
In Canada, the federal Divorce Act and the provincial Family Law Act use different terminology regarding parenting arrangements. In addition, the Divorce Act only applies to people who are married.
The Family Law Act applies to common-law spouses and married couples. In situations where both the Divorce Act and the Family Law Act are applicable, the Divorce Act is generally used due to the principle of paramountcy (which means that where there is an inconsistency between federal and provincial laws, the federal law will take effect).
The Divorce Act
The Divorce Act previously used the terms “custody” and “access”. The Divorce Act has been amended so that the terms “custody” and “access” are no longer used.
The term “custody” relates to the idea of possession of property. Legislatures are moving away from the idea of children as property. This is why the Divorce Act was amended to eliminate the use of the terms “custody” and “custody order,” replacing them with “parenting order” and “parenting time.”
The current terms used in the Divorce Act are as follows:
Parenting orders grant parenting time or decision-making responsibility in respect of a child. This term replaces the custody order. The equivalent term under the Family Law Act is Orders Respecting Parenting Arrangements.
Parenting time refers to the time with the child allocated to a parent. This term replaces the terms custody and access. Parenting time has the same meaning under the Family Law Act.
Decision-making responsibilities refer to the authority to make a significant decision about a child’s well-being, such as health, education, extracurricular activities, culture, language and religion. Decision-making responsibilities were a part of custody under the former Divorce Act. The equivalent term under the Family Law Act is Parental Responsibilities.
Contact refers to court-ordered time with a child with someone who is not a parent. This was previously covered under the term access. The equivalent term under the Family Law Act is Contact Time, although that could also refer to court-ordered time with a child and a parent if the parent is not a guardian.
Family Law Act
In addition to the terms used above, the Family Law Act also used the term Guardian.
Guardian refers to a parent who can exercise parental responsibilities. Parents are generally guardians of their children. If two parents live together after the child’s birth and before separation, the parents are automatically guardians. A parent who never lived with the other parent but regularly cared for the child is also a guardian.
A parent who has never lived with the other parent and has not regularly cared for the child is not a guardian and would need to apply to be appointed guardian.
A person who is not a parent can apply to become a guardian, but that person has to establish that it is in the child’s best interest that they are appointed a guardian (and undergo background checks).
Only guardians can exercise parenting time and parental responsibilities.
A person who is not a guardian can apply for contact time with a child. That includes parents who are not a guardian and extended family members.
There is no equivalent term to a guardian under the Divorce Act. If two parents are married but never lived together, after separation, each parent would be entitled to parenting time and decision-making responsibilities as they are spouses under the Divorce Act, regardless of whether or not they were guardians.
If they were not married, the parent who never lived with the child or did not regularly care for the child would not automatically be a guardian under the Family Law Act.