Bill C-78: How the Divorce Act Changed in 2021

Author: SiLaw Group Family Lawyers
Publish Date: Sep 30, 2019
Updated: Aug 5, 2026
Read Time: 3 min read

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The Divorce Act changes brought in by Bill C-78 are already law. The parenting and inter-jurisdictional support amendments came into force on March 1, 2021, so orders made since then are framed as parenting orders rather than custody and access orders.

This post was first written in 2019, while Bill C-78 was still before Parliament. It has been updated to describe the law as it now stands.

New Parenting Language

The terms "custody" and "custody order" were repealed from the Divorce Act. In their place:

• Custody order becomes parenting order. Under s. 16.1 a court may allocate parenting time and decision-making responsibility on application by either or both spouses, or — with leave of the court — by a person other than a spouse who is a parent of the child, stands in the place of a parent, or intends to stand in the place of a parent.
• Access for a non-spouse becomes a contact order. Under s. 16.5 a grandparent or other person who is not a spouse may apply for contact with the child.
• Decision-making responsibility is defined in s. 2(1) as responsibility for making significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extracurricular activities.
• Parenting time is defined in s. 2(1) as the time a child of the marriage spends in the care of a person referred to in s. 16.1(1), whether or not the child is physically with that person during that entire time.

The change is more than vocabulary. The older wording invited parents to think about winning custody of a child; the current wording describes responsibilities and time.

Best Interests of the Child

Section 16 requires a court to consider only the best interests of the child, and to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. It then lists the factors the court weighs, including the child's views and preferences, the history of care, and any family violence.

This brought the federal statute closer to the approach BC's Family Law Act had already taken, which matters because many separating families in BC deal with both statutes at once.

Family Violence

Bill C-78 added a definition of family violence to s. 2(1) of the Divorce Act. It covers conduct that is violent or threatening, a pattern of coercive and controlling behaviour, and conduct that causes a family member to fear for their safety, and it expressly does not need to amount to a criminal offence. Where family violence is present, the court must consider it in deciding what parenting arrangement is in the child's best interests.

Relocation Notice

Sections 16.8 to 16.96 created a notice regime for moves. A person with parenting time or decision-making responsibility must give notice of a change of residence, and a proposed relocation requires at least 60 days' written notice in the prescribed form. A person who receives that notice generally has 30 days to object. Our post on notice rules for relocating with a child walks through what to send and when.

Access to Justice

The stated objectives of the reform were to promote the best interests of the child, address family violence, help reduce child poverty, and make Canada's family justice system more accessible and efficient. The Department of Justice explains the package in its legislative background to Bill C-78.

Whether the amendments change anything in your case depends on the orders you already have and on whether your matter proceeds federally or under BC's Family Law Act. The differences between uncontested and contested divorce are a good next read.

Have questions about a parenting order or an older custody order? Book a free 30-minute consultation or call SiLaw Group at (778) 381-9977.