Ontario Decision-Making Responsibility & Parenting Time
In Ontario, parents who are living in separate households need to make arrangements for decision-making responsibility (formerly known as custody) and parenting time (formerly known as access).
This includes parents who are divorcing and parents who've never married.
Most parents reach an agreement on how to share these duties and create a parenting plan together.
Visualize your schedule. Get a written parenting plan. Calculate your parenting time.
After you agree on a parenting plan, you don't have to get a parenting order from the court. However, you should get one if you'll need help enforcing your agreement or if you'll need to prove that you have decision-making responsibility for the purpose of:
- Registering the child in school
- Consenting to medical treatment
- Obtaining benefits for the child
- Applying for a passport
You should definitely apply for a parenting order if you're living separately from the other parent and can't agree on a parenting arrangement. If you don't settle during the court process, you'll go to trial to present evidence to a judge, who will make a final decision.
Practices and procedures may vary by court. To learn more about the specific procedures in your area, reach out to a professional.
Decision-making responsibility gives a parent the right to make decisions about their child's welfare, schooling and health, among other things.
There are three types:
- Sole decision-making responsibility: Only one parent can make major child-related decisions.
- Joint decision-making responsibility: Both parents have the right to make major decisions about the child.
- De facto decision-making responsibility: When married parents live separately with no parenting order or agreed-on parenting plan, and one of them houses the child full time, that parent gets to make the major child-related decisions.
A parent might not get decision-making responsibility if the judge thinks they will use their power to harm the other parent.
Parenting time gives a parent the right to spend time with their child and get information about their child's health, education and welfare (though they might not have the right to make decisions about those things). Parenting time schedules specify when parents will see the child.
Ontario courts uphold that it's best for children to spend as much time as possible with each parent. So, shared parenting time, in which the child spends at least 40 percent of the calendar year with each parent, is most common.
In rare cases, a parent may have majority parenting time, meaning the child spends most – or all – of their time in the care of one parent.
When there are multiple children, each parent could house different kids (called split parenting time). This is rare and usually only applies if there's a significant age gap between the children.
Even if a parent has a criminal history or behaves adversely, they can have parenting time. Most likely, it will be supervised parenting time, during which a supervisor must be present. These visits are often held at a supervised access centre.
The only circumstance that could result in a parent having no parenting time is if they're proven to have abused or neglected the child.
Paternity determines the identity of the child's father. Paternity must be legally established before either parent can request child support or a parenting order.
A man is legally considered the child's father if he:
- Was married to the mother when the child was born
- Ended his marriage to the mother 300 or fewer days before the child's birth
- Married the mother after the child's birth and acknowledged that he was the natural father
- Was living with the mother at the time of the child's birth
- Stopped living with the mother 300 or fewer days before the child's birth
- Voluntarily signed the child's birth registration
- Was found to be the father by a Canadian court
Otherwise, to establish paternity you will need to begin a declaration of parentage case.
The applicant should give the court as much information as they can to support their claim of who the father is, and they may request a DNA test. Even if the test is not positive, the court can declare the man the child's father if he acted in a parental role.
Requesting a parenting or contact order
You have to apply for a parenting or contact order with the right court.
The Family Court Branch of the Superior Court of Justice is the only court that can hear all types of family law cases. If your municipality has one, you'll submit your application there.
If not, you'll submit your application to the Superior Court of Justice if you're asking for a divorce. Submit your application to the Ontario Court of Justice if you aren't married or are a nonparent who needs a contact order.
Alternatives to court
You could resolve your case without court intervention through an alternative dispute resolution method.
- Mediation: A specially-trained social worker, lawyer, retired judge or mental health professional facilitates a conversation between parents to get them to a mutual agreement.
- Collaborative family law: Lawyers and other professionals act as coaches to help parents reach an agreement.
- Family arbitration: This is similar to court in that parents present their case to a legal professional who makes the final decisions for them.
You do not have to use a professional to resolve your case if you can reach an agreement on your own.
How the court makes parenting decisions
All decisions related to decision-making responsibility and parenting time must serve the best interest of the child. When making a parenting order, the judge must consider both parents':
- Willingness to encourage a relationship between their child and the other parent
- Experience caring for the child
- Plan for the child's care
- Ability and willingness to provide care for the child and meet their needs
- Ability and willingness to communicate and cooperate with one another on child-related issues
The court also considers whether there's any family violence. It only considers a parent's past behaviour if the behaviour impacts their ability to exercise decision-making responsibility or parenting time.
The judge also considers the child's:
- Needs based on their age and stage of development
- Relationship with each parent
Reports and assessments help the court determine what parenting arrangement would be in the best interest of the child. Written by a mental health professional who investigates the family's circumstances, these documents include recommendations for the judge about decision-making responsibility, parenting time and any related matters.
Length of proceedings
The length of a case depends on how complicated it is, but one to two years is typical if the case goes to trial.
Most divorce orders do not technically finalize until 31 days after they're issued. However, they take effect immediately.
Cost of proceedings
You can expect to pay $300 to $600 per hour for an experienced lawyer. The Law Society of Ontario publishes average hourly lawyer costs in the province.
Divorcing parents can expect to pay at least $632 in court fees: $212 when they submit an application to the court, and $420 before the court reviews the divorce. In the Family Court Branch of the Superior Court of Justice, unmarried parents can expect to pay $202 to submit an application. There are no fees to submit an application to the Ontario Court of Justice.
Some cases require a clinical report or private assessment, which can cost anywhere from a few thousand to $20,000.
You can ask for a fee waiver if you can't afford court costs.
Finding a lawyer or representing yourself
Representing yourself in court is not recommended for cases with any complexity. You'll be held to the same standards as a lawyer.
If you need assistance, the Ontario courts offer a guide for parents representing themselves in court. Also, some courts have duty counsel who provide free limited legal services to people who are unrepresented.
You could also opt to handle some matters in your case on your own and let a lawyer handle the rest. This is called hiring a limited-scope lawyer or using unbundled legal services.
Ontario family laws
There are a few sets of family laws. More than one set may apply to your case depending on the issues at hand.
- Family Law Rules: Provincial law that applies in all family law cases in the Family Court Branch of the Superior Court of Justice, Superior Court of Justice and the Ontario Court of Justice
- Children's Law Reform Act: Provincial law that applies to common-law partners who've decided to separate, married couples who've decided to separate without getting a divorce, and parents who are neither married nor in a common-law partnership
- Family Law Act: Provincial law that regulates the rights of spouses and dependents in regard to property, support, inheritance, prenuptial agreements, separation agreements, and other matters of family law
- Divorce Act: Federal law that applies to married couples who've decided to divorce
Court conferences and trials are open to the public, so you may have other people observing your in-person or online court events. The public can access family court files for all cases except those involving child protection services.
Practice directions inform participants in a case of what the court expects from them. Your application could be rejected or you could incur extra costs if you don't follow the directions.
The Superior Court of Justice and its Family Court Branch have provincial practice directions and regional practice directions. The Ontario Court of Justice's practice directions are province-wide, and it suggests asking your local court about specific protocols.
Our professional sources
For more help, consider reaching out to one of our sources. The people and offices listed below have helped us with the intricacies of decision-making responsibility and parenting time in Ontario, and we hope they can help you, too.
Cheryl A. Hodgkin
Divorce the Smartway
Gene C. Colman
Office of the Children's Lawyer
Owen & Associates Law Firm
Renfrew County Mediation Services
Daniel F. Lanoue
The Smart Divorce
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