If you are separating and have children, decision-making responsibility and parenting time in Ontario are the issues that matter most. Ontario parents still speak about custody and access, but those words no longer appear in the legislation that governs their case. Since March 2021, both the federal Divorce Act and Ontario’s Children’s Law Reform Act have used decision-making responsibility and parenting time instead. The change was more than cosmetic. It reframes the question away from who wins the child and toward who does what for the child, and it reflects how courts were already approaching these disputes. Understanding the current framework will help you have a more productive conversation about your own arrangements.
The Language Changed, and So Did the Framing
Under the Divorce Act, decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of health, education, culture, language, religion and spirituality, and significant extra-curricular activities. Parenting time means the time that a child spends in the care of a parent, whether or not the child is physically with that person during that entire time. The Children’s Law Reform Act, which applies to parents who were never married to each other, adopts materially the same definitions.
The practical significance is that the two concepts are separate. A parent can have substantial parenting time without holding decision-making responsibility, and decision-making responsibility can be divided by subject so that one parent decides on education while both must agree on medical treatment. Framing the dispute this way often narrows it considerably, because parents who cannot agree on a global label frequently can agree on the specific arrangements underneath it.
Best Interests of the Child Is the Only Test
There is no presumption in favour of either parent, and no starting point of equal time. The court decides according to the best interests of the child, and nothing else. Section 16(2) of the Divorce Act directs that when considering the statutory factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Section 24(2) of the Children’s Law Reform Act imposes the same primary consideration.
Beyond that, the court considers all factors related to the circumstances of the child, including the child’s needs given their age and stage of development, the nature of the child’s relationship with each parent and other significant people, each parent’s willingness to support the child’s relationship with the other parent, the child’s views and preferences where they can reasonably be ascertained, the child’s cultural and linguistic upbringing including Indigenous heritage, and any family violence. Section 16(6) directs the court to give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests. That is a principle about the child, not an entitlement belonging to a parent.
How Parenting Time in Ontario Is Allocated, and Who Decides What
Parenting time may be set out in a schedule, and in most workable arrangements it is. A detailed schedule covering the regular rotation, holidays, school breaks, birthdays and transitions removes the recurring friction of negotiating each week. Under section 16.2(2) of the Divorce Act, unless the court orders otherwise, a parent with parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. Ordinary daily choices therefore do not require consultation.
Decision-making responsibility can be allocated to one parent, to both, or to any combination of the parties described in the legislation, and it can be broken down by category. Section 16.4 also entitles a person with parenting time or decision-making responsibility to request information about the child’s well-being, including health and education records, from the other, unless a court orders otherwise. That provision matters for parents who feel shut out of school or medical information.
Relocation, and What to Do if a Dispute Arises
Moving with a child is treated seriously. A parent who intends to relocate must give notice to any other person with parenting time, decision-making responsibility or contact at least 60 days before the expected date of the move, in the prescribed form, setting out the expected date, the new address and contact information, and a proposal for how parenting time or decision-making could be exercised afterward. A court may authorize or prohibit the relocation, and may prohibit removal of a child from a specified geographic area without written consent or a court order. Moving first and explaining later is among the most damaging things a parent can do to their own position.
If a parenting dispute is developing, resolve what you can outside court. Both statutes encourage family dispute resolution processes, and negotiated schedules are almost always more durable than imposed ones. Keep a factual record of the arrangements actually in place, because the status quo carries weight. Avoid drawing the child into the conflict, and be careful about what you put in writing. If safety is a concern, raise it promptly and specifically rather than as a general allegation.
If you are working out parenting arrangements in Ontario, careful advice at the outset can prevent years of conflict. George Habib, family lawyer at Habib Legal Counsel, will review your situation and help you pursue an arrangement that works for your children. Visit HabibLC.com or call anytime at 647-648-2164 — George Habib and his firm are ready to help.
George Habib | Habib Legal Counsel | Family Law | 647-648-2164 | Contact us
