The New Divorce Act: Changes in Terms Relating to Custody and Access
Effective March 1st, 2021 the Canada Divorce Act is being amended and the terminology relating to Child Custody and Access will change. This will apply to Alberta and the rest of the provinces.
Who does this Affect?
The Divorce Act is federal legislation which means that it applies across all provinces and to any married couple seeking a divorce residing in the country. Therefore, this impacts all divorcing couples in Canada who apply for a divorce after March 1st, 2021. The Divorce Act legislation and terminology does not apply to unmarried couples who separate and require parenting orders.
Note: Unmarried couples who separate in Alberta require parenting orders that are governed by provincial legislation, specifically, the Family Law Act of Alberta .
Information for Albertans:
Under the Divorce Act, prior to March 1st, 2021, practically, with most divorce orders that we would draft and have entered in Alberta, we would reference joint custody to indicate both parents would be allowed make decisions for their child regarding matters such as:
- cultural and religious upbringing;
- and the child’s health and medical treatment.
If one parent had sole custody, that parent would have the sole ability related to decision making.
Joint custody did not in and of itself designate which parent the child was residing with. For example, we would specify in a Divorce Order that there is joint custody with the child residing primarily with one parent, and the other parent having access according to a certain schedule. Or, we would indicate the parents would have joint custody with both parents having shared parenting time. We would then describe the parenting schedule. Residing with one parent primarily meant that the child resided with that parent 60% or more of the time. If it were a shared parenting schedule, the child would reside with both parents 40% or more of the time.
Changes to the Terminology in the Canada Divorce Act
The new Divorce Act now references the terms: decision making and parenting time. As a result, when we are drafting a Divorce Order we will no longer be using the term custody. We will be referencing parent’s decision making powers and parenting time. View the revised Divorce Forms for Alberta .
If you already have a divorce order that references the old custody and access terms, it’s not necessary for you to obtain a new order with the revised terms. However, if there has been a change in circumstances wherein you require a change in the parenting terms, the revised parenting order will obviously have to be framed with the new terms as defined in the Divorce Act.
If you Started a Statement Claim for Divorce Prior to March 1st:
If you started a Statement of Claim for Divorce prior to March 1st, 2021 and if you do not yet have a divorce order in place, your divorce order will need to be framed with the terms as set out in the new Divorce Act.
Going forward, your divorce will reference whether one or both parents have decision making. Additionally, the order will address the parenting time of the parents. If your child resides with one parent, 60% or more of the time, that parent has the majority of parenting time. If the child resides with both parents 40% or more of the time, that is referenced as shared parenting time.
Please book a consultation if you require any assistance with understanding the changes and how they might affect you.