Custody and Access vs Parenting Time in Canada

If you separated before March 1, 2021, your court order probably says "custody" and "access." If you are going through a separation now, those terms are legally obsolete. The Divorce Act amendments that took effect on that date replaced them across the board, and PEI's Children's Law Act followed the same shift. Here is what actually changed and what it means for existing and new orders.

The Old Framework: Custody and Access

Under the previous Divorce Act, "custody" meant the right to make decisions about the child and have the child live with you. "Access" meant the right to spend time with the child and receive information about their health, education, and welfare. The labels created a winner-loser dynamic: one parent had "custody" (the real parent) and the other had "access" (the visitor).

Joint custody existed, but older terminology often framed one parent as the custodial parent and the other as an access parent. Those labels could contribute to a winner-loser dynamic and conflict.

The New Framework: Decision-Making Responsibility and Parenting Time

The amended Divorce Act replaced the old terms with three concepts:

Decision-making responsibility covers the authority to make significant, long-term decisions about the child's health, education, language, culture, religion, and significant extracurricular activities. It can be sole (one parent decides), joint (both parents decide together), or divided (each parent has authority over specific domains).

Parenting time is when the child is in a parent's care. During their parenting time, that parent makes all day-to-day decisions — meals, bedtime, screen time, playdates. Both parents have parenting time, not one parent with "custody" and the other with "access."

Contact is reserved for non-parents — grandparents, stepparents, other family members who apply for designated time with the child.

The shift is not just semantic. The old terms implied ownership; the new terms describe functions. A parent does not "have custody of" a child — they have decision-making responsibility for specific domains and parenting time during specific periods.

What Changed for Existing Orders

If your court order or separation agreement uses the old terms, do not assume it is invalid because of the terminology. The 2021 change did not itself require every existing order to be rewritten. However:

• An old order's wording must be read in context: "custody" may address decision-making responsibility, parenting time, or both, while "access" generally describes time with the child.
• The current framework uses "decision-making responsibility" and "parenting time"; do not assume the old labels alone answer what the order permits.

If you are applying to vary an existing order, the new application and any resulting new order will use the current terminology. You do not need to apply specifically to update the language, but any new filing in PEI's Supreme Court Family Section must use "decision-making responsibility" and "parenting time."

Why the Change Matters in Practice

Beyond the labels, the 2021 amendments introduced several substantive changes:

Family violence is now expressly identified as a mandatory best-interests factor. The court must consider the nature, severity, and pattern of any family violence when making parenting decisions.

Relocation rules are codified. The Divorce Act now includes specific notice requirements (60 days written notice), objection timelines (30 days to object), and burden-of-proof rules based on the existing parenting time arrangement.

The best-interests factors are expanded and detailed. The amended Section 16 of the Divorce Act lists specific factors the court must weigh — including the child's views, cultural heritage, and each parent's willingness to support the other's relationship with the child.

Maximum parenting time principle. The Act now states that parenting time should be allocated to give the child as much time with each parent as is consistent with the child's best interests. This is not a presumption of 50/50, but it shifts the framing away from one "custodial" parent.

Using the Right Language

If you are drafting a parenting plan, negotiating a separation agreement, or filing any application in PEI, use the current terminology exclusively. Using "custody" and "access" in a new filing signals unfamiliarity with the law and can undermine your credibility with the court. It also creates ambiguity — a judge interpreting your proposal should not have to translate between old and new terms.

The Prince Edward Island Child Custody & Parenting Plan Guide uses the modern terminology throughout and structures every worksheet around the current statutory framework — decision-making responsibility, parenting time, and the specific best-interests factors PEI judges evaluate.

The terminology shift reflects a real change in how Canadian family law thinks about children after separation: not as property to be divided between a winner and a loser, but as people who need structured, ongoing relationships with both parents.

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