Going through a separation or divorce is hard, especially when children are involved and decision-making responsibility and parenting time are an issue. Along with sorting out child support, this is the most important decision that parents need to make for their children. These choices can feel confusing, but understanding the legal framework and working with a family law lawyer can make the process more manageable.
Although many people still refer to it as “custody and access”, parenting arrangements are referred to as decision-making responsibility and parenting time. In Ontario, this is governed by the Children’s Law Reform Act.
Decision-Making Responsibility and Parenting Time Offer a Child-Focused Approach
Historically, family law used the terms “custody” and “access.” Amendments to the Divorce Act in March 2021 removed those terms to reduce the sense of ownership over children and refocus the law on what matters most – the best interests of the child.
“Custody” is now called decision-making responsibility in Ontario. Decision-making responsibility covers major decisions about a child’s life, including education, health care, religion, language, cultural upbringing, and significant extracurricular activities. This includes decisions such as which school a child attends, whether they enter a special education program, who can consent to medical treatment, and how the child is raised culturally or religiously.
In Ontario, “access” is known as parenting time. Parenting time refers to the time a child is in a parent’s care, including time spent together in person and time when the parent remains responsible for the child, such as while the child is at school. During parenting time, a parent generally makes everyday decisions about meals, clothing, routines, and bedtime, unless a court order or agreement says otherwise.
It is important to understand that decision-making responsibility and parenting time are separate legal issues. A parent may have parenting time without having decision-making responsibility, or vice versa. Both are also separate from child support. A parent may be required to pay child support even if they do not have decision-making responsibility or parenting time.
How Does Decision-Making Responsibility Work?
Decision making responsibility can be structured in different ways, depending on the family’s circumstances. In many cases, parents share decision-making responsibilities. This was previously known as joint custody and means both parents are involved in major decisions affecting their child.
In some cases, one parent has sole decision-making responsibility. This means only that parent can make major decisions affecting the child, although the other parent is usually still entitled to receive information about the child. Sole decision-making responsibility does not mean the other parent cannot have parenting time, nor does it give one parent full control over the parenting schedule.
Sometimes, decision-making responsibility is shared in a customized or blended way. For example, parents may divide responsibility by topic, such as one parent making health care decisions and the other making education decisions. In other cases, parents may share decision-making generally but agree that one parent has final say if they cannot agree, either for all decisions or for specific areas.
What Are Parenting Time Arrangements?
There are no automatic parenting schedules under Ontario law. Parenting arrangements must be tailored to the child’s best interests. Some agreements or court orders are very detailed, setting out exact schedules, transitions, and holiday arrangements. Others are more flexible.
While there is no standard schedule, parenting arrangements are often described in general categories.
Primary care arrangements are those where one parent has more than 60 percent of the parenting time. A common example is one parent having parenting time on alternating weekends while the other parent has the child most of the time.
Shared parenting arrangements involve each parent having between 40 and 60 percent of the parenting time. This can include alternating week schedules or arrangements where weekdays are shared and weekends alternate.
Split parenting arrangements occur in families with more than one child, where each parent has the majority of parenting time with at least one child. These arrangements are uncommon, as separating siblings is generally discouraged. Split parenting refers only to the schedule and does not necessarily affect decision-making responsibility.
Who Decides on Decision-Making Responsibility and Parenting Time?
Parents are usually in the best position to make decisions for their children. As long as a child’s safety is not at risk, courts generally respect parenting agreements made by parents.
When parents cannot agree, there are several ways to resolve disputes. Alternative dispute resolution options are encouraged and may be required before going to court. These include mediation, settlement meetings with lawyers, and other provincially developed programs including the Dispute Resolution Officer (DRO) Program and Family Mediation Services.
Arbitration is another option, where a trained professional, often an experienced lawyer, is given the authority to make decisions after hearing evidence. Parenting coordinators are a specific type of arbitrator who can help resolve day-to-day parenting disputes but cannot make major changes to parenting time or decision-making responsibility. Collaborative family lawyers also work outside the court system and commit to resolving issues without litigation.
These approaches are not suitable in every situation, particularly where family violence is present. If alternative methods fail or are inappropriate, a judge will decide decision-making responsibility and parenting time through a court application.
What Courts Consider When Deciding Parenting Arrangements
Under the Divorce Act, the only factor considered when deciding parenting arrangements is the best interests of the child. The primary focus is the child’s physical, emotional, and psychological safety, security, and well-being.
Courts consider all of the child’s circumstances, including:
- The child’s age and developmental needs;
- Relationships with parents and other important people, including siblings and grandparents;
- Each parent’s willingness to support the child’s relationship with the other parent;
- The history of care of the child;
- The child’s views (where appropriate);
- The child’s cultural and religious background;
- Plans for the child’s care;
- Each parent’s ability to meet the child’s needs;
- Willingness of each parent to communicate with others with decision-making responsibilities;
- Any family violence; and
- Any other relevant court orders or proceedings.
Since every child and family is different, the law does not include presumptive schedules or default arrangements.
When a Child’s Views Are Considered in Decision-Making Responsibility and Parenting Time
Children do not have the final say about where they live or how parenting time is arranged until they become adults. However, a child’s views may be considered as they grow older and more mature. There is no fixed age, but children around the age of 12 may start to have their views considered, and by approximately 16, those views often carry more weight.
A child’s perspective can be considered in different ways. Sometimes parents take the child’s views into account informally. In more formal cases, a lawyer may be appointed to represent the child, or a psychologist may prepare a report that includes the child’s views or assesses parenting abilities. Regardless of the method used, it is generally best to keep children out of conflict between parents whenever possible.
Facing a Divorce or Separation? We’re Here to Support You With Decision-Making Responsibility and Parenting Time
If you need help deciding parenting time or decision-making responsibilities, speaking with an experienced family law lawyer can provide clarity and support. Whether you are considering alternative dispute resolution, negotiating with your spouse, or looking at a court application, the family law lawyers at Scharff Nyland Chambers LLP are here to represent you.
With offices located in Barrie, Toronto, Wasaga Beach, and Collingwood, we offer compassionate support for you and your family anywhere in Ontario. Call us at 1-866-721-5851, email reception@sncfamilylaw.com, or book a consultation through our website.
This blog is for general information only and is not legal advice. For advice about your specific situation, please contact a family law lawyer.
