When people with children separate, sorting out the parenting arrangements for the children is often a high priority. While, sometimes, people are able to sort these issues out on their own, many – especially when there is a history of family violence – turn to the law for assistance.
Which law for parenting arrangements will apply?
Depending on the family’s circumstances, a woman will use either the federal Divorce Act or the provincial/territorial legislation where she lives, both of which set out the laws for how parenting arrangements are to be made.
If seeking a divorce: For a woman to use the Divorce Act, she must be married to the other parent of the children and be applying for a divorce.
Everyone else: Anyone else – people in common-law relationships and people who have never cohabited but who have children together and married people not divorcing – must use the provincial/territorial legislation.
Decisions are made on the best interests of the child
Whichever legislation applies, the court has the ability to make different orders depending on what it thinks is in the best interests of the children.
The Divorce Act sets out 11 factors to be considered when determining what is in the best interests of the children, including the presence of family violence.
Some provincial/territorial legislation contains the same best interests of the child test and a definition of family violence, but other provinces and territories have their own regimes.
Terminology
The Divorce Act and some provincial/territorial statutes use the term parenting order to describe the order setting out the time the children spend with each parent (parenting time) and how decisions about the children are to be made (decision-making responsibility).
Other provinces and territories continue to use the terms custody and access.
Your role
It’s important for a woman to be aware of the two laws, which of them applies to her and what the differences between them are.
- See the provincial/territorial resources for the law for parenting arrangements in your jurisdiction.
- More detail about parenting arrangements the Divorce Act, which applies everywhere in Canada, is available in the Luke’s Place toolkit, The Law and Parenting Arrangements after Separation.
You will also support survivors to provide the court with a parenting plan.