The word “custody” is one of the most misunderstood concepts in family law. In general parlance, “custody” has underlying connotations of ownership and is often associated with police detention in criminal matters. In the family law context, when coupled with its adversarial cousin “access”, these concepts reinforce a win-lose mentality. It is therefore easy to see why many separated spouses find themselves fighting tooth and nail for a court order designating them as the “custodial parent” and trying to avoid being made the somehow lesser “access” parent: the terms themselves are emotionally charged by their very etymology.
The concepts of “custody” and “access” are also archaic in nature and have roots dating back to property law. This, in part, explains the confusion many litigants have that “custody” of children equates to children being in your primary physical care. But of course children are not objects or property to be owned, and as a result there has been a decades-long movement to rid the governing family law legislation of terminology that places emphasis on parental rights and shifts it back on what matters most: the children.
Bill C-78 and Bill 207 offer a welcome paradigm shift by repealing the out-dated definitions of “custody” and “access” and replacing them with the more child-focused concepts of “decision making responsibility” and “parenting time”. By shifting the emphasis away from parenting rights to parental responsibilities the legislatures are sending a strong message that children are the primary focus and parents have legal responsibilities to ensure that the children’s best interests are being met.
“Decision making responsibility” is defined in the new legislation as responsibility for making significant decisions about a child’s well being, including with respect to health, education, culture, language, religion, and significant extra-curricular activities. The list is not exhaustive, however, it provides much more clarity than the former definition of the term “custody” which was ironically devoid of any reference to decision making whatsoever.
Under the new federal and provincial legislation, Courts are permitted to make “parenting orders” which designate (or share) “decision making responsibility” of children and/or schedule “parenting time”. The concept of a “parenting order” replaces what used to be called – you guessed it – a custody order.
The amendments to the parenting provisions of the Divorce Act also recognize that those who are seeking Orders for time with children might not always be parents. Bill C-78 and its provincial counterpart, Bill 207, introduce the concepts of “contact” and “contact orders” which allow a non-parent, such as grandparents or other person who is not a parent but has an important role in a child’s life, to apply to the Court to seek an order to spend time or have “contact” with a child. Such “contact” does not necessarily mean being in the physical presence of the non-parent, but may be more communicative in nature like scheduled telephone or Facetime calls.
While this is an important nod by the legislature in favour of grandparents who sometimes find themselves in the middle of embattled spouses, it is important to note that the amendments do not go so far as to provide a default presumption in favour of grandparent contact. Instead, contact with a grandparent or non-parent is but one of several factors to be taken into account in considering what is in the best interests of the children.
Moreover, when determining whether to make a contact order, the legislation requires the Court to consider all relevant factors including whether the non-parent contact could occur during the parenting time of another person, rendering the application for a contact order by a non-spouse unnecessary. Since it is preferable if parents can agree on arrangements for the involvement of non-spouses in the life of a child without a Court Order, the Courts must consider whether a person seeking a contact order could exercise contact during the parenting time of another person.
The repeal and replacement of the antiquated terms of “custody” and “access” brings Canada and Ontario in line with recent reforms in several other jurisdictions across the globe. Indeed, modernizing the terminology employed by the parenting statutes has long been regarded as a small but necessary step toward shifting the focus in family law back on children’s needs and militating against the win-lose mentality pervasive to the family justice system. The introduction of “decision making responsibility”, “parenting time” and “contact orders” to the governing legislation has been a long time coming and will hopefully drive home the concept that children are not property, and that parents have responsibilities to children, not rights over them.