What Replaced “Custody” and “Access” — and Why the Words Matter
If your parenting agreement or court order was made several years ago, it may still use the words “custody” and “access.”
If you are creating or changing a parenting arrangement today, you are more likely to see different terms:
decision-making responsibility, parenting time and contact.
The federal Divorce Act stopped using “custody” and “access” when major amendments came into force on March 1, 2021. Ontario's Children's Law Reform Act was also amended effective March 1, 2021 to use the newer parenting terminology.
The change was more than replacing one set of labels with another.
The legislation now describes more specifically who makes important decisions for a child, when a child is in someone's care, and how significant people outside a parental role may maintain contact with the child.
Understanding those distinctions can make a parenting agreement much clearer.
What Replaced “Custody” in Ontario?
The old term “custody” covered several aspects of parenting that the current framework now describes more precisely.
Two of the most important terms are:
Decision-Making Responsibility
Decision-making responsibility means responsibility for making significant decisions about a child's well-being.
Under the Divorce Act, those decisions include matters relating to:
health;
education;
culture, language, religion and spirituality; and
significant extracurricular activities.
Decision-making responsibility can be allocated to one person, shared or divided by subject.
For example, parents might share responsibility for healthcare and education.
In another family, one parent might make educational decisions while another area is shared.
The arrangement does not have to fit into one single label.
Parenting Time
Parenting time refers to the period when a child is in a parent's care.
It can include periods when the child is not physically beside the parent—for example, when the child is at school during that parent's parenting time.
Unless a court orders otherwise, the person exercising parenting time generally has authority to make ordinary day-to-day decisions affecting the child during that time. Ontario's Children's Law Reform Act expressly provides for this.
That is different from making major decisions about education, healthcare or religion.
What Replaced “Access”?
For a parent, what was traditionally called “access” is now generally described as parenting time.
For someone outside the parental role, the current legislation uses the concept of contact.
Under Ontario's Children's Law Reform Act, a court can make a contact order allowing a person other than a parent to have contact with a child.
Under the federal Divorce Act, a person other than one of the divorcing spouses can apply for a contact order, such as grandparents and other people important to a child.
Contact can therefore provide a legal framework for an important relationship without treating that person as though they have the same parenting responsibilities as a parent.
Did “Custody” Simply Become “Decision-Making Responsibility”?
Not exactly.
This is one reason a simple word-for-word replacement can be misleading.
For older Divorce Act orders:
custody is generally treated as both decision-making responsibility and parenting time;
access by a spouse is treated as parenting time; and
access by a non-spouse is treated as contact.
So the current framework separates concepts that were previously bundled together.
That makes it possible to describe a family's actual arrangement more precisely.
For example:
One parent may have most of the parenting time while both parents share decision-making responsibility.
Or parenting time may be close to equal while responsibility for a particular category of decisions is allocated differently.
Parenting time and decision-making responsibility do not have to be divided in the same way.
Why Did the Law Move Away From “Custody” and “Access”?
Justice Canada explains that the newer terminology is intended to focus parenting orders on relationships with children and the responsibilities involved in caring for them, rather than concepts associated with ownership or possession.
That shift is reflected in the structure of the current law.
Instead of asking only who has “custody,” a parenting arrangement can answer more specific questions:
Who makes major medical decisions?
Who decides which school the child attends?
What does the parenting schedule look like?
Who makes ordinary decisions during each parent's parenting time?
How will important information about the child be shared?
Those questions tend to produce a much clearer document than relying only on a broad label.
Did Anything Besides the Terminology Change?
Yes.
The amendments that came into force in 2021 introduced or expanded several important parts of the federal parenting framework.
A More Detailed Best-Interests Framework
Parenting decisions under the Divorce Act are based on the best interests of the child.
The legislation now contains a detailed list of factors for courts to consider, including the child's needs and relationships, history of care, views and preferences where appropriate, cultural and linguistic upbringing, the parents' ability to cooperate and the presence or impact of family violence.
Ontario's Children's Law Reform Act also contains a detailed best-interests framework.
Express Attention to Family Violence
Family violence is now specifically addressed in the parenting provisions.
The court may consider the seriousness and frequency of violence, patterns of coercive or controlling behaviour, whether the child was directly or indirectly exposed, and whether requiring the parents to cooperate would create safety concerns.
This matters when deciding not only parenting time, but also whether shared decision-making is appropriate.
A Duty to Protect Children From Conflict
Under the Divorce Act, parties to a proceeding have a duty, to the best of their ability, to protect children from conflict arising from the proceeding.
That can include avoiding discussions about the litigation in front of the child or placing the child in the middle of disagreements between the parents.
Family Dispute Resolution Where Appropriate
The Divorce Act also says that parties must try to resolve issues through a family dispute resolution process to the extent that it is appropriate to do so.
That can include negotiation, mediation or collaborative law.
The qualification matters.
Justice Canada specifically recognizes that family dispute resolution may not be appropriate where, for example, there is family violence or a serious power imbalance.
It should therefore not be presented as a requirement that parents must mediate regardless of safety or circumstances.
What Changed About Relocation?
The 2021 changes also created a much more structured process for relocation.
A “relocation” is not simply any move.
Under the Divorce Act, it means a change in residence that is expected to have a significant impact on the child's relationship with a person who has parenting time, decision-making responsibility or qualifying contact.
A person with parenting time or decision-making responsibility who proposes to relocate must generally provide at least 60 days' notice in the prescribed form to the other people identified by the Act. The notice includes the expected moving date, the new address and a proposal for how parenting time, decision-making responsibility or contact could work after the move.
Ontario's Children's Law Reform Act contains a similar 60-day notice framework for relocations.
There can be exceptions or modifications to notice requirements, including where there is a risk of family violence.
This means a parent considering a significant move should not assume that finding a new home or accepting a job in another city is only a personal decision.
A move that substantially affects the parenting arrangement may have legal requirements that need to be addressed before the relocation occurs.
What If Your Agreement Still Says “Joint Custody”?
An older agreement does not become invalid simply because it uses older terminology.
Justice Canada confirms that parents can continue relying on Divorce Act custody and access orders made before March 1, 2021. The terminology changes themselves are not a reason to reopen an existing order.
If your existing arrangement works, you do not necessarily need to replace it simply to update the words.
But older language can sometimes require interpretation.
For example, the phrase “joint custody” may tell you that both parents were intended to have a role in important decisions.
It may not explain:
whether every decision must be unanimous;
which parent has authority over particular issues;
what happens when the parents disagree;
how information is exchanged; or
how parenting time is scheduled.
If an older agreement or order is being changed for another reason, the updated document will generally use the current terminology.
Should a New Separation Agreement Still Use “Custody” and “Access”?
For a new Ontario parenting arrangement, the current terminology is usually clearer and more consistent with the legislation.
Instead of saying:
“Parents will have joint custody.”
a parenting agreement can say something more precise, such as:
“The parents will share decision-making responsibility for education and healthcare.”
Then the agreement can separately set out the parenting schedule.
That makes it easier to understand what each parent is actually responsible for.
It can also reduce the risk of later disagreements about what a broad label was supposed to mean.
Does Parenting Time Automatically Mean Decision-Making Responsibility?
No.
A parent can have parenting time without having responsibility for every major decision.
Likewise, a parent can share decision-making responsibility even if the child spends more time in the other parent's care.
Ontario's Children's Law Reform Act allows courts to allocate decision-making responsibility—or specific aspects of it—to one or more people and to allocate parenting time separately.
This is one of the most useful features of the current framework.
It allows the agreement to describe how this particular family will function rather than forcing every arrangement into one label.
What Is a Contact Order?
A contact order deals with a child's relationship with someone who is not exercising parenting responsibilities in the same way as a parent.
In Ontario, the Children's Law Reform Act permits a contact order for a person other than a parent.
This might include, depending on the circumstances:
a grandparent;
another relative; or
another significant person in the child's life.
Contact is still determined according to the child's best interests.
It should not be understood as an automatic right to see a child simply because a person has a family relationship with them.
What Should a Parenting Agreement Actually Specify?
Good terminology helps, but specificity matters more than simply using the correct labels.
A parenting agreement may need to address:
who has decision-making responsibility;
whether responsibility is shared or divided by subject;
the regular parenting schedule;
holidays and school breaks;
transportation and exchanges;
communication with the child;
access to school and health information;
travel;
relocation or changes in residence;
how parents will communicate about important issues; and
how future disagreements will be handled.
The goal should be a document that tells the parents how the arrangement works in practice.
A label alone rarely does that.
What If You Find “Custody” Advice Online?
The word “custody” still appears frequently online for several reasons.
Some Canadian information predates the March 1, 2021 reforms.
Older Canadian agreements and court decisions also continue to use the previous terminology.
And American family-law websites often still use “custody” extensively.
That does not make every older source useless.
But parenting law is jurisdiction-specific, and terminology that sounds familiar may refer to a different legal framework.
If you are dealing with parenting issues in Ontario, look for information based on the current Canadian and Ontario legislation, particularly the Divorce Act and the Children's Law Reform Act.
Frequently Asked Questions
When did Ontario stop using “custody” and “access”?
The current parenting terminology came into effect on March 1, 2021, when amendments to the federal Divorce Act and Ontario's Children's Law Reform Act took effect.
What is custody called now in Ontario?
There is not one exact replacement. What was previously described as custody is now generally addressed through decision-making responsibility and parenting time.
What is access called now?
For parents, access is generally called parenting time. For qualifying people outside the parental role, the legislation uses contact.
Is an old custody order still valid?
Yes. An existing Divorce Act custody or access order made before March 1, 2021 remains effective. The terminology change alone does not require parents to obtain a new order.
Do I need to update my separation agreement because it says “joint custody”?
Not simply because the terminology changed. But if the agreement is being amended for another reason, using the current terminology and clearly describing decision-making and parenting time can make the revised document more precise.
What does decision-making responsibility include?
It generally includes significant decisions about areas such as health, education, culture, language, religion, spirituality and significant extracurricular activities.
What does parenting time include?
Parenting time is the period when the child is in a parent's care, including times when the child may be at school or another activity during that parent's period of responsibility.
Do I have to give notice before moving with my child?
A change of residence and a legal “relocation” are treated differently. Where a proposed move qualifies as a relocation because it is likely to significantly affect the child's relationships, the Divorce Act and Ontario legislation generally require advance notice, including a 60-day notice period for a proposed relocation, subject to applicable exceptions.
Start With a Clearer Parenting Plan
Changing the language from “custody” and “access” did not eliminate difficult parenting decisions.
It gave families a more specific way to describe them.
Who makes important decisions, when the child is in each parent's care and how future changes will be handled should be clear from the parenting arrangement itself—not left inside a broad label.
If you are separating and trying to organize the legal and practical issues that need attention, download Willing Law's Separation Checklist as a starting point for the decisions ahead.
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This article provides general legal information only and is not legal advice. Reading it does not create a solicitor-client relationship.
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