Custody is a term used by the Divorce Act. This term is not part of the terminology included in the Family Law Act. Although the term is contained in the Divorce Act, the Act does not define the term “custody”. The case law interpreting the term “custody” has been used in two different senses—a narrow sense and a broad sense. The narrow interpretation refers to the mere physical custody or day-to-day care and control of the child, while the broader definition means the full bundle of rights and responsibilities of a parent to a child, inclusive of the day to day care and control of the child.
Guardianship is a term used by the Family Law Act. The act provides that while a child’s parents are living together and after they separate, each parent is a guardian of the child. In situations other than that described, the Act goes on to define when and under what circumstances a parent may be a guardian to a child. Importantly, the Act also provides that only a guardian may have parental responsibilities (defined at Section 41 of the Act to include such matters as day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child). Also, only a guardian may have parenting time with a child. A non-guardian’s time with a child is described by the Act as “contact” with the child. Parenting time is a broader right than is contact, and bestows upon the guardian greater rights than is the case where a parent only has contact rights to a child.
Visitation rights are addressed by both the Divorce Act and the Family Law Act. Under the Divorce Act, visitation rights are referred to as “access”. Section 16(5) of the Divorce Act provides that, in addition to the right of access, a spouse granted access to a child of the marriage has the right to make inquiries and to be given information as to the health, education and welfare of the child.
Under the Family Law Act, visitation rights are referred to as “parenting time” or, in a more limited context, “contact”. Parenting time is the time that a child is with a guardian as allocated under an agreement or court order. Subject to an order that provides otherwise, a guardian exercising parenting time also has the right to make day-to-day decisions affecting the child and to have day-to-day care, control and supervision of the child. Time spent with a child by a person who is not a guardian (which may, in some instances, include a parent of that child) is referred to as “contact”. The rights of a person who has only contact with a child are much less significant than those of a guardian exercising parenting time with that child.