The terms commonly used to describe parenting arrangements are “custody” and “access”. This is the traditional language of parenting. Indeed, these are the terms used in the Divorce Act and, until recently, Nova Scotia’s relevant legislation. But times are changing and so is the language of parenting.
A new definition of custody, a change in the terminology of “access” and new concepts in parenting can leave us speaking different parenting languages. However, these changes are important for addressing the way that we talk about parenting and ultimately the law’s conceptualization of parenting
Custody
Traditionally, the term “custody” includes physical custody and legal custody. Physical custody refers to where the child lives and legal custody refers to a parent’s right to make decisions regarding the child. Both the Divorce Act and Nova Scotia’s Parenting and Support Act (PSA) use the term “custody”.
On May 26, 2017, the Parenting and Support Act (“PSA”) came into effect in Nova Scotia. The PSA amended the Maintenance and Custody Act (“MCA”). The PSA added a definition of “custody”:
2(ba) means the responsibility and authority for the care and upbringing of a child and for the making of decisions regarding the care, supervision and development of the child.
Therefore, “custody” is a general term that describes the responsibility for the child’s care (“physical custody”) and a parent’s right to make decisions (“legal custody”).
Parents share decision-making unless they agree that one parent will have “sole custody” or the Court orders that one parent will have sole custody. Where the Court orders “joint custody” both parents have legal and physical custody. However, joint custody does not mean that the child spends equal time with each parent. A written parenting plan sets out “parenting time” when the parent is with the child.
Joint custody does mean that the parents have a duty to consult the other parent about major decisions affecting the child, for example, the child’s: education, spirituality, well-being and health.
A parent with “sole custody” has final decision-making rights. The other parent may have “parenting time” with the child but not have custody. Note, however, that a parent with access has a right to receive information about the child.
“Parenting time” is the new “access”
The biggest language changes are in relation to “access”. While the Divorce Act still uses the term “access”, the PSA has replaced the term with “parenting time”.
The Divorce Act still uses the term “access.” However, the new Parenting and Support Act does not use the term access. Instead, the term “parenting time” refers to any time that a child spends with a parent or guardian under an agreement or Court order. The Act defines “parenting time” as follows
2(ib) “parenting time” means the time when, under an agreement or a court order, a parent or guardian is with the child.
The amendments to replaced “access” and “visiting privileges” with “parenting time”. A “parenting plan” is a written agreement regarding the custody and living arrangements of the child.
Contact Time and Interaction Time
The PSA introduced two defined two concepts: contact time and parenting time. “Contact time” refers to the time a child spends with someone who is neither a parent or guardian. The Court may order contact time or it may be agreed to by the parties.
“Interaction time”, on the other hand, refers to a parent’s association with a child other than “in person”. Interaction time includes phone calls, Skype, letters, cards, attending school events and more. This concept was not defined in the MCA and is not defined in the Divorce Act.
So why do these changes matter?
While these changes may seem superficial, they are not. These changes reflect the larger evolution of how the law approaches parenting issues. The old “custody” and “access” language is sometimes described as encouraging combativeness in custody disputes. This language promotes the winner and loser mentality. The new language encourages co-operation between parents, keeping the focus on the child. The old language is out-dated and does not reflect the reality of many families. The new concepts of contact time and interaction time are a reflection of the changing ways that families communicate.
Words are powerful. The new language of parenting is a reflection of legislative efforts to keep up with society’s changing values and perceptions that are intricately shape family law.
A note on jurisdiction:
It is important to understand that different legislation applies to divorcing (married) couples and non-divorcing couples. The Federal Divorce Act only applies when a couple is divorcing. Child support and child custody orders are considered “corollary relief” under the Divorce Act. On the other hand, provincial legislation, the Parenting and Support Act in Nova Scotia, applies to unmarried parents or married parents who are separating but not divorcing. The language used to describe parenting is different depending on the applicable legislation.
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