How existing custody, guardianship and access orders are dealt with under the Family Law Act.

Existing orders dealing with custody, guardianship, access, property division are caught by the transitional provisions of the Family Law Act at ss. 250-256.

Explanation from the Ministry of Justice

This Part creates rules for transitioning from using the Family Relations Act to using the Family Law Act. It deals with the application of the Act with regard to ongoing court proceedings as well as how to deal with orders and agreements made under Family Relations Act.

The Interpretation Act provides a default that the Act will be used upon its becoming effective.

Therefore, all new proceedings will be brought under the Family Law Act after it comes into effect (March 18, 2013), unless otherwise provided in these transition provisions. Any issue not specifically addressed in this Part will be dealt with under the Act once it comes into effect.

Generally, the transition provisions support the immediate use of the Family Law Act for family law disputes, even when they have been started under the Family Relations Act or when there are existing agreements or orders made under the Family Relations Act. This promotes a speedy transition to the new regime and ensures the tools and benefits of the new law can be realized immediately by all families.

There are a couple of exceptions to this general transition rule:

With the exception of pensions, property division proceedings that were commenced under the Family Relations Act will be determined by a court under the Family Relations Act unless the parties agree to use the Family Law Act.

Restraining orders granted under the Family Relations Act will remain effective as per their terms.

Section 251(1) of the Family Law Act deals with existing orders under the Family Relations Act that deal with custody, guardianship and access.

Section 251(1)(a) of the Family Law Act now defines custody and guardianship as guardian and as a person who has parental responsibilities and parenting time with respect to a child.

Section 251(1)(b) of the Family Law Act now classifies access as “contact with a child”.

Explanation from the Ministry of Justice

Section 251 addresses how orders or agreements made for custody, guardianship or access under the Family Relations Act will be dealt with under the Family Law Act.

This section provides that orders or agreements which refer to custody, guardianship, and access that were made under the Family Relations Act, before the coming into force of the Family Law Act, will be considered and interpreted according to the new language under the Family Law Act as follows:

A person who had custody or guardianship under the Family Relations Act will be a guardian with parental responsibilities under the Family Law Act. The time that such a person has with the child under the old order or agreement will be their parenting time.

A person who has access but not custody or guardianship under the Family Relations Act will have contact with the child under the Family Law Act. They will not be a guardian.

Details of a party’s parental responsibilities, parenting time or contact will be determined as best as can be through consideration of how the terms and conditions of custody, guardianship and access orders or agreements are described.

Under s. 254, a judge may not change the wording of an existing agreement or order based only on a wish to use the new terminology respecting care of and time with children. However, if a future dispute arises due to a change in circumstances, the court will resolve the issue under the Family Law Act. For example, if there is an order respecting access made under the Family Relations Act and a dispute arises after the Family Law Act is in effect, the access will be interpreted as either parenting time or contact, according to s. 251, and the new rules respecting changing or enforcing arrangements for time with a child will apply.

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, do not need special transition sections.

Section 4 of the Interpretation Act provides a default rule that the Act will be used upon its becoming effective, so cases started under the Family Relations Act will be determined under the Family Law Act.