Custody law in Canada: the Divorce Act and each province, in plain English

Custody in Canada: the words have changed

Many Canadians still say custody and access. Federal law dropped both words on March 1, 2021, when changes to the Divorce Act took effect.

The new words split one idea into two:

• Decision-making responsibility means making significant decisions about a child's well-being. The Act's definitions name health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
• Parenting time is the time a child spends in a person's care. It counts even when the child is at school during that time.
• Contact is time a child spends with someone who isn't a parent, such as a grandparent, under a contact order.

So "joint custody" now usually means shared decision-making responsibility, and "access" has become parenting time. Our plain-English custody terms glossary translates the older words you'll still hear.

Which law applies: the Divorce Act or your province

Canadian family law has two layers. The federal Divorce Act generally applies when married couples divorce, says the federal parenting guide.

When married parents separate but aren't divorcing, provincial or territorial law applies. The same is true when the parents never married. Common-law partners can't divorce, so the Divorce Act doesn't cover them.

Both layers use one test: the best interests of the child. Ontario's list of factors copies the federal one almost word for word.

The split also decides your court. In Ontario, a Children's Law Reform Act claim can go to three different courts, and fees don't apply the same way in each.

Province by province: the statute and the words it uses

For parents who aren't divorcing, this is the main law. Divorcing spouses everywhere use the Divorce Act.

One name causes confusion. Ontario also has a Family Law Act, but its parts cover property, the matrimonial home and support. Parenting claims in Ontario sit under the Children's Law Reform Act.

British Columbia's guardians share "parental responsibilities", a list in section 41. It runs from day-to-day care to school, health care and passports.

Quebec: parental authority and custody

Quebec follows the civil law tradition. Its rules rest on two ideas.

Parental authority covers all the rights and duties parents have toward a child, including custody and education. Both parents keep it after separating, even when one has sole custody, says the Quebec government.

Custody is about where the child lives and with whom. A parent with sole custody decides where the child lives. They must still consult the other parent on important decisions. Examples include school registration, religion, consent to health care and treatment such as orthodontics. Everyday decisions belong to the parent who has the child at that moment.

Quebec's custody principles page describes three patterns by time share:

Courts favour no model. The only test is the child's interest. Unless shown otherwise, the court assumes both parents have adequate parenting abilities.

A joint custody agreement that a court hasn't ratified can't be enforced if one parent ignores it. Married Quebec couples who divorce use the federal Divorce Act and its terms.

Before any order: married, common-law and never-together parents

Without a court order, each province sets a starting point, including for parents who never married.

• Ontario: both parents are equally entitled to decision-making responsibility under section 20. If the child lives with one parent with the other's consent, the other's decision-making right is suspended. Their parenting time is not suspended.
• British Columbia: each parent is a guardian while living together and after separating. A parent who has never lived with the child isn't a guardian unless an exception applies. One exception is that the parent regularly cares for the child.
• Alberta: guardianship can come from giving birth, marriage or living with the other parent, an agreement or a court order. A parent can also qualify by showing, within a year, an intention to act as guardian. Examples include marriage at the birth, or living together for 12 straight months that include the birth. A birth mother qualifies by carrying the pregnancy to term.
• Saskatchewan: parents are joint legal decision-makers. If they never lived together after the birth, the parent the child lives with is the sole legal decision-maker.

Saskatchewan's Children's Law Act, 2020 says the court can't presume one parent should be preferred over the other.

Under section 16.4 of the Divorce Act, anyone with parenting time can ask for information about the child's health and education.

Types of orders: parenting, contact and plans

Under the Divorce Act, a judge makes a parenting order under section 16.1. It can do several things:

• set a schedule of parenting time
• give decision-making responsibility to one parent, both, or split it by topic
• require supervised parenting time or handovers
• allow or forbid a relocation, or removal from a named area

A judge can also make an interim order while the case is running.

A grandparent or other non-spouse can ask for a contact order, with the court's permission.

If you and the other parent agree, you can file a parenting plan. The court must include it in the order unless it isn't in the child's best interests. Some plans add a right of first refusal clause for childcare during the other parent's time. Put side agreements in writing too, using a method for recording verbal co-parenting agreements.

Provincial orders do similar work. An Ontario court can stop a parent changing the child's school or daycare without consent.

How courts decide: the best interests of the child

Section 16 of the Divorce Act says the court considers "only the best interests of the child". It must give "primary consideration" to the child's "physical, emotional and psychological safety, security and well-being".

The court then looks at all the child's circumstances, including:

• the child's needs at their age and stage, including stability
• the child's bond with each parent, siblings, grandparents and other key people
• each parent's support for the child's relationship with the other parent
• the history of care, and the plans for future care
• the child's views and preferences
• the child's culture, language, religion and heritage, including Indigenous heritage
• each person's ability to care, communicate and cooperate
• any family violence, and any related court case

Past conduct counts only if it affects how a person parents. Ontario's section 24 uses nearly the same list. British Columbia and Alberta have their own lists, and both give weight to the child's safety.

For how judges weigh real facts against these factors, read what Canadian courts look for in parenting cases.

The child's views: is there an age when a child can choose?

The Divorce Act sets no age at which a child decides where to live. Neither do the Ontario, British Columbia or Alberta statutes. The Divorce Act tells the court to weigh the child's views and preferences, giving "due weight to the child's age and maturity".

Provincial laws say much the same. British Columbia's Act considers the child's views "unless it would be inappropriate". Alberta's considers them "to the extent that it is appropriate to ascertain them".

Courts can also get outside help. In Ontario, section 30 lets a court appoint a professional to assess the child's needs and report back. In Quebec, the court may order a psychosocial evaluation.

Shared, equal and sole arrangements

The Divorce Act doesn't start from a 50/50 split. Instead, section 16(6) says a child should have as much time with each spouse as is consistent with the child's best interests.

British Columbia goes further. Section 40 says no arrangement is presumed best. It names three things a court must not presume:

• that parental responsibilities should be shared equally
• that parenting time should be shared equally
• that guardians should decide things separately or together

If you're weighing schedules, use our custody schedule comparison tool to see each rhythm across two weeks. To track how time actually splits against an order, the parenting time calculator guide shows how to count it.

Where parents can't communicate, courts sometimes order parallel parenting, with major decisions split between them. For health decisions and information rights, see our guide to medical decisions after separation.

Mediation, dispute resolution and parenting courses

Under section 7.3 of the Divorce Act, parties must try family dispute resolution "to the extent that it is appropriate". That covers negotiation, mediation and collaborative law.

Each province adds its own steps:

• Ontario: both parties must attend a free Mandatory Information Program within 45 days of a case starting. It applies to parenting claims and to motions to change a final order.
• British Columbia: outside early resolution registries, the Provincial Court often requires a Parenting After Separation course before it schedules your first court date.
• Alberta: the Parenting After Separation course is required before you file a divorce or Family Law Act application in the Court of King's Bench.
• Quebec: couples with children get a free 2.5-hour parenting after separation session. Separating parents also get 5 free hours of mediation.

BC's steps don't apply to some applications, such as protection orders. To get the most from a session, see how to prepare records for custody mediation.

How to apply: forms, fees and timelines

Steps differ by province. In Ontario, you usually start with Form 8, the general application, plus a continuing record. A parenting claim also needs Form 35.1, an affidavit about decision-making responsibility, parenting time and contact.

Ontario's fee page, updated April 9, 2026, lists these Superior Court fees:

The Ontario Court of Justice charges no filing or listing fees in family cases. The Family Court branch charges none for Children's Law Reform Act cases. If you can't afford fees, you can ask for a fee waiver.

In British Columbia's early resolution registries, you start with a Notice to Resolve a Family Law Matter (Form 1) and a needs assessment.

Our Canadian figures on how long parenting cases take set expectations. Before a first meeting, see how to prepare records for your lawyer.

Urgent and without-notice orders

Courts can make interim orders while a case runs, and sometimes before the other parent is told.

Ontario's Family Law Rules allow a motion without notice in limited cases, including:

• an immediate danger that the child will be removed from Ontario
• an immediate danger to the health or safety of the child or the parent asking
• cases where serving notice would probably have serious consequences

An order made without notice must come back to court within 14 days, or on a date the court picks.

Ontario's Children's Law Reform Act also covers a child being wrongly kept from a parent. Under section 36, a court can authorize someone to find and take the child.

Where there's a risk of family violence, a court can also waive the Divorce Act's notice rules for moves. You can ask without notice.

Family violence and safety

The Divorce Act defines family violence broadly. It includes violent or threatening conduct, a pattern of coercive and controlling behaviour, and conduct that causes a family member to fear for their safety. The conduct doesn't need to be a crime.

For a child, it includes direct or indirect exposure. Ontario's examples include stalking, psychological and financial abuse, and threats to harm an animal.

When weighing violence, section 16(4) asks how serious, frequent and recent it was, and whether it formed a pattern of coercive control.

Courts can order supervised parenting time or exchanges. They also weigh whether an order should require the parents to cooperate at all. British Columbia's Act says an arrangement must protect the child's safety "to the greatest extent possible".

Write down what happens soon after, in plain facts. Our guides on documenting co-parent harassment and writing a factual incident report show how.

Moving with a child: change of residence and relocation

The Divorce Act treats two kinds of move differently.

A change of residence is a move that won't affect the child's relationships much. Under section 16.8, you give written notice with the date and the new address.

A relocation is a move likely to have a significant impact on the child's relationship with the other parent. Section 16.9 sets stricter rules:

• give at least 60 days' notice, in the form set by federal regulations
• include the date, the new address and a proposal for future parenting time
• the other parent has 30 days to object, by form or court application

With no objection in time and no order against it, you may move on the notice date.

If it goes to court, section 16.93 decides who must convince the judge:

Ontario's sections 39.1 to 39.4 mirror these rules. British Columbia also requires 60 days' notice and asks whether the move is in good faith.

The Supreme Court of Canada looked at relocation in Barendregt v. Grebliunas, 2022 SCC 22. It let two children move with their mother to a town a 10-hour drive from their father's home. It called the analysis "highly fact-specific and discretionary".

Travelling outside Canada with your child

A consent letter shows that a parent who isn't travelling agrees to the trip. Canada recommends one, though it isn't legally required. Border officers and airlines may ask for it, even on a day trip to the United States.

Parenting orders can go further. A Divorce Act or Ontario order can forbid removing the child from an area without consent or a court order.

If you fear an abduction, Global Affairs Canada's guide for affected parents lists practical steps. For a child under 16, you can ask to add the child's name to the Passport Program lookout list.

The Hague Child Abduction Convention can help return a child under 16 who usually lived in Canada, from countries where it applies.

Taking a child under 14 in breach of a custody or parenting order is a crime under section 282 of the Criminal Code. Section 283 covers taking a child even without an order. Each offence carries up to ten years in prison.

Changing a parenting order

Orders aren't permanent. Under section 17 of the Divorce Act, a court can vary, rescind or suspend a parenting order.

The court must first be satisfied that the child's circumstances have changed since the last order.

Provincial laws use similar tests. British Columbia's section 47 allows a change when the child's needs or circumstances have changed. In Ontario, you bring a "motion to change". The Mandatory Information Program applies unless the motion deals only with support.

Show what the order said, what changed, and how that change affects the child. Our guide on organizing records for a custody modification walks through that structure.

When an order is broken: enforcement

When a parent ignores an order, provincial law supplies most of the tools.

• Ontario: any order other than a payment order can be enforced by a contempt motion. A court can also order that a wrongly withheld child be found and returned.
• British Columbia: if parenting time is wrongfully denied, apply within 12 months under section 61. Orders can require dispute resolution, counselling, compensatory time or repayment of expenses. A payment or fine of up to $5,000 is also possible. A denial isn't wrongful if, for example, the parent reasonably believed the child might suffer family violence.
• Alberta: the Family Law Act has a full division on enforcing time with a child, including enforcement orders.
• Saskatchewan: a court can act when parenting time is wrongfully denied, if that serves the child's best interests.

Record each missed or blocked visit the same way, so a pattern is easy to see. These guides help:

• logging denied parenting time
• documenting order violations
• keeping records that show parenting time happened
• call logs and voicemail in Canadian family court

Support orders are enforced separately, by programs such as Ontario's Family Responsibility Office. Our guide to unpaid child support in Canada explains how they work.

What to document, and how

Best-interests factors ask about real life, such as who did the care. Dated records answer that better than memory. Keep records like these:

• planned and actual parenting time, kept in a parenting-time log template
• handovers, late arrivals and cancellations, with the messages
• decisions about school, health and activities, and who made them
• notices about moves or travel, with the date sent

Keep originals. Our guide to what counts as evidence in a Canadian parenting case explains which records carry weight.

Casewell keeps these records private and dated on your phone, and exports a court-ready PDF timeline for your lawyer.

TO:
FROM:
CHILD OR CHILDREN:
DATE THIS NOTICE IS SENT:
EXPECTED DATE OF THE MOVE:
NEW ADDRESS:
NEW CONTACT DETAILS:
EFFECT ON THE PARENTING SCHEDULE:
HOW THIS NOTICE WAS DELIVERED: