Parenting Time vs Decision-Making Responsibility
- •The March 2021 Divorce Act amendments replaced 'custody' (decision-making + residence) and 'access' (visits) with two separate concepts: parenting time and decision-making responsibility.
- •The change separates two questions courts used to bundle: (1) where do the children live and when do they see each parent, and (2) who makes the major decisions about their lives.
- •Fathers should track both separately in any post-2021 application — one parent can have most of the parenting time while sharing equal decision-making, or vice versa.
The old terms vs new terms
| Pre-2021 | Post-2021 | What it actually means |
|---|---|---|
| Sole custody | Sole decision-making responsibility | One parent makes the major decisions (school, healthcare, religion) |
| Joint custody | Joint decision-making responsibility | Both parents share major decisions |
| Access | Parenting time | Scheduled time the children are in each parent's care |
| Primary residence | (part of parenting time) | Where the children primarily live; addressed via parenting time allocation |
| Generous access | (part of parenting time) | A significant proportion of parenting time |
Parenting time
Parenting time is the time during which a child is under the care of a particular parent. The court allocates parenting time based on the best interests of the child (Divorce Act s.16(3)). There is no presumption of equal time, but there is also no presumption of primary residence with one parent.
- Includes weekday time, weekends, holidays, school breaks, summer vacation
- Can be specified by hour, day, week, or by general schedule (e.g. 'alternating weeks')
- Includes responsibilities during parenting time (the parent in care makes day-to-day decisions while the child is with them)
- Can be supervised, supervised by a specified person, or unsupervised
Decision-making responsibility
Decision-making responsibility is the authority to make significant decisions about the child's well-being. The Divorce Act lists three main categories of decisions:
- Health — including major medical decisions, mental health treatment, dental and orthodontic care
- Education — school choice, special-education needs, post-secondary planning
- Culture, language, religion, spirituality — major decisions about heritage and upbringing
Day-to-day decisions (what to eat, bedtime on a given night, who the child plays with) are NOT decision-making responsibility — they belong to whichever parent is exercising parenting time at the moment.
Decision-making can be allocated jointly to both parents, solely to one parent, or split by category (e.g. one parent has educational decision-making, the other has medical).
Why the separation matters for fathers
Under the old 'sole custody' framework, a father who didn't have primary residence often had no formal decision-making authority either — even when actively involved. The new framework explicitly separates these:
- A father can have less parenting time (say, every other weekend) but still share equal decision-making responsibility on health and education
- A father can have substantial parenting time but agree to give the other parent final say on a specific issue (e.g. religion)
- The reverse holds: parents who share parenting time 50/50 can still allocate decision-making solely to one parent if that's what works
- Courts have shown increasing willingness to allocate decision-making by category — assigning health to one parent and education to the other where conflict makes joint decision-making impractical
What to ask for and how to ask
- Decide what your proposed PARENTING TIME schedule looks like — by day and time, including holiday/school-break rotations.
- Separately decide your proposed DECISION-MAKING allocation — joint for all categories, or split by category, or sole to one parent for a specific category.
- Frame both in the language of the Divorce Act s.16(3) best-interests factors, not in fairness-to-parents language.
- Address communication mechanisms (e.g. coParenter app, written exchanges, scheduled discussion times) where decision-making is shared.
- Include a dispute-resolution clause for when joint decision-makers disagree (often: mediator before court).
Frequently asked
Do I still use the words 'custody' and 'access' in my affidavit?
For matters under the federal Divorce Act, use the new terminology ('parenting time', 'decision-making responsibility'). For matters under some provincial statutes (BC Family Law Act, parts of AB Family Law Act) the old terms may still apply technically — but courts increasingly use the new framework regardless. Match the statute you're actually applying.
Does the new framework change how courts decide?
Not fundamentally — the best-interests-of-the-child analysis is the same. But the framework makes it easier to argue for non-traditional arrangements (joint decision-making with unequal parenting time, or vice versa). Courts have shown willingness to allocate decision-making by category since 2021.
What if there's family violence?
The 2021 amendments added family violence as an explicit factor in best-interests analysis (s.16(3)(j) and s.16(4)). The Act requires courts to consider family violence in allocating both parenting time and decision-making responsibility. If family violence is present in your matter, the affidavit must clearly document it — type, frequency, witnesses, evidence — and connect it to specific impacts on the children.