Do my old custody rights still count now that the law has changed?

The situation

I am currently living in a small town in Canada and I am feeling quite confused about my rights regarding my seven-year-old daughter. Back in June 2020, my ex-husband and I had a formal agreement finalised by a judge where I was granted full custody of our daughter, while he was granted supervised access every second weekend. I have been the primary caregiver and have handled all the daily labour of raising her, including her schooling and medical appointments, for the last four years. However, I recently heard from a friend at a community programme that the terminology used in our old paperwork might not be the same as what is used in the legal system today. I have already tried speaking to my former solicitor, but they were unavailable to take my call last week. I am worried that because the old terms like 'custody' and 'access' are being replaced by new phrases, my legal standing might have vanished or changed without me knowing. I need to know if the rights I held under that 2020 order automatically carry over into the new system, or if I have to go back to court and pay for a new order to prove I still have the right to make decisions for her.

Detailed Analysis

You do not need to go back to court to prove your rights still exist. Even though the words used in your 2020 paperwork have changed, the law ensures your legal standing remains intact.

Under the Divorce Act, there is a rule for people in your exact situation. The law states that "a person who had custody of a child by virtue of a custody order made under this Act... is deemed as of that day, to be a person to whom parenting time and decision-making responsibility have been allocated"^[1]. This means that because you were granted full custody in June 2020, the law automatically treats you as the person with decision-making responsibility (the right to make important choices for your daughter) and parenting time (the time you spend with her)^[1].

Similarly, your ex-husband's rights have also been updated. The law says a former spouse who had access "is deemed as of that date, to be a person to whom parenting time has been allocated"^[1]. This means his 'access' is now legally called 'parenting time.'

Because you have been the primary caregiver, you also maintain authority over daily life. A person with allocated parenting time "has exclusive authority to make, during that time, day-to-day decisions affecting the child"^[2]. This refers to routine matters like meals or bedtime.

While your rights carry over, the law is not permanent. If circumstances change significantly, a person can apply to the court for a variation order. A court can change a parenting order if there is "a change in the circumstances of the child since the making of the order"^[3].

Note that federal laws like the Divorce Act apply to marriages that qualify, but provincial or local family laws may add further rules regarding child welfare or specific provincial procedures.

Statutory Citations

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