Custody and access were removed from Ontario and federal family law on 1 March 2021. Custody was replaced by decision-making responsibility and access by parenting time, where the person is a parent, and contact where the person is not.
Two questions are decided separately: who makes significant decisions about the child, and when the child is in each parent’s care. A parent can hold one without the other.
How Foote Law Can Help
Foote Law acts for parents on parenting arrangements, whether negotiated or contested:
- Advice on which statute governs and which court has jurisdiction.
- Negotiation and drafting of parenting plans and separation agreements.
- Applications for parenting orders, including the required affidavit and care plan.
- Applications to vary an existing order where circumstances have changed.
- Enforcement where an order is not being followed.
- Representation at conferences, motions, and trial.
Foote Law accepts Legal Aid Ontario certificates and Employee Assistance Program referrals. Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139. Foote Law serves clients in Orangeville, Fergus, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, Centre Wellington, and throughout the Greater Toronto Area, in person and virtually.
Custody and Access No Longer Exist
The Divorce Act and the Children’s Law Reform Act were amended effective 1 March 2021. Orders made before that date remain valid and continue to use the former terms.
Which Law Applies
The Divorce Act applies where the parents are married and a divorce proceeding is underway or has concluded.
The Children’s Law Reform Act applies where the parents were never married and where married parents have separated without commencing a divorce proceeding.
The section numbers are not interchangeable, and the provincial Act does not require a person who is not a parent to obtain leave before applying.
Under section 22 of the Children’s Law Reform Act, the court exercises jurisdiction where the child is habitually resident in Ontario or is present in Ontario and has a real and substantial connection to the province, with an exception where there is a threat of serious harm.
Two Separate Questions
Decision-making responsibility and parenting time are allocated independently of one another.
A parent may have sole decision-making responsibility while the child spends equal time in each household. Parents may share decision-making responsibility while the child lives primarily with one of them. Neither allocation determines the other.
Decision-Making Responsibility
Decision-making responsibility means responsibility for making significant decisions about a child’s well-being, including decisions about health, education, culture, language, religion and spirituality, and significant extracurricular activities.
Day-to-day decisions are made by the parent exercising parenting time at the time, unless a court orders otherwise.
Under section 20 of the Children’s Law Reform Act, parents are equally entitled to decision-making responsibility. Under section 20(4), that entitlement is suspended where the parents are separated and the child resides with one of them with the consent or acquiescence of the other, until an agreement or order provides otherwise.
Parenting Time
Parenting time is the time a child spends in the care of a parent, whether or not the child is physically with that parent during that time.
Under section 20(5) of the Children’s Law Reform Act, the entitlement to parenting time includes the right to visit with and be visited by the child, and the same right as a parent to make inquiries and be given information as to the child’s health, education, and welfare. A parent with little or no parenting time retains that right to information.
Under section 16(6) of the Divorce Act, in allocating parenting time the court gives 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 provision replaced the former maximum contact principle.
The Arrangements Courts Order
Decision-making responsibility is allocated in one of three ways:
- Sole decision-making responsibility
- One parent has authority over significant decisions. The other parent retains parenting time and the right to information.
- Joint decision-making responsibility
- The parents must consult and agree. It presupposes a working ability to communicate.
- Parallel parenting
- Each parent makes decisions independently during their own parenting time, under a structure designed to minimize contact between the parents. It is used in high-conflict cases.
Parenting time is described by reference to the schedule rather than by a label:
- Shared parenting time
- Each parent has the child at least 40% of the time over the course of a year.
- Split parenting time
- There is more than one child, and each parent has primary care of at least one.
How the Decision Is Made
Section 16(1) of the Divorce Act and section 24(1) of the Children’s Law Reform Act each direct the court to take into account only the best interests of the child.
The court considers all factors related to the child’s circumstances and gives primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being. The enumerated factors are
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.
- The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents, and any other person who plays an important role in the child’s life.
- Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.
- The history of care of the child.
- The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
- Any plans for the child’s care.
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.
- The ability and willingness of each such person to communicate and co-operate, in particular with one another, on matters affecting the child.
- Any family violence and its impact.
- Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
Past conduct is not considered unless it is relevant to the exercise of parenting time, decision-making responsibility, or contact.
Family Violence
Section 18(1) of the Children’s Law Reform Act defines family violence as any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person. In the case of a child, it includes direct or indirect exposure to such conduct.
Section 18(2) provides that the conduct need not constitute a criminal offence. It includes physical abuse, sexual abuse, threats, harassment, the failure to provide the necessaries of life, psychological abuse, financial abuse, and the killing or harming of an animal or damage to property, or threats to do so.
Under section 24(3)(j), the court weighs any family violence and its impact, including the ability and willingness of the person who engaged in it to care for and meet the child’s needs and whether an order requiring the parties to co-operate is appropriate. Section 24(4) sets out what that impact includes: the nature, seriousness, and frequency of the violence; whether it forms a pattern of coercive and controlling behaviour; whether it was directed at the child or the child was exposed to it; the harm or risk of harm to the child; any compromise to the child’s or another family member’s safety; whether it causes fear for anyone’s safety; and any steps the person responsible has taken to prevent further violence.
Whether the Child Has a Say
The child’s views and preferences are a statutory factor, weighted according to the child’s age and maturity, unless they cannot be ascertained. They are not decisions; they are evidence. The court distinguishes between what a child wants and what serves the child’s interests.
Under section 112 of the Courts of Justice Act, where a question of decision-making responsibility, parenting time, or contact is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations on those matters and on the child’s support and education.
Reaching an Agreement Without Court
Most parenting arrangements are settled between the parents. An agreement may be recorded in a parenting plan and incorporated into a separation agreement, which is binding once signed and witnessed and which each parent should sign after obtaining independent legal advice.
An agreement can be converted into a consent order, which makes it enforceable as an order of the court.
Mediation, collaborative practice, and negotiation between counsel are the routes to an agreement. Under the Divorce Act, parties are required to try a family dispute resolution process to the extent it is appropriate, and that requirement does not apply where family violence makes it inappropriate.
How Parenting Time Affects Child Support
Where each parent exercises parenting time at least 40% of the time over the course of a year, section 9 of the Federal Child Support Guidelines applies. Ontario’s guidelines use the same threshold.
Forty percent is approximately 146 days. Reaching it permits the court to depart from the table amount; it does not require the court to do so, and it creates no presumption that support becomes a set-off between the two table figures.
Section 9 requires the court to consider:
- The amounts each parent would pay under the applicable tables.
- The increased costs the shared arrangement creates.
- The conditions, means, needs, and other circumstances of each parent and of the child.
A significant difference in income can keep support near the table figure notwithstanding an equal schedule.
Changing an Order
Under section 29(1) of the Children’s Law Reform Act, a court shall not vary a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The Divorce Act applies the same requirement.
The change must be material, meaning one that was not foreseen when the order was made and that alters the child’s needs or a parent’s ability to meet them. Dissatisfaction with the existing order is not a change in circumstances.
Neither is the 2021 legislation itself. The Moving Ontario Family Law Forward Act, 2020 provides that its enactment or coming into force does not in itself constitute a material change in circumstances, so an order using the former terminology cannot be varied on that basis alone. Where a variation is granted for one order, the court may vary a related contact order or parenting order to correspond.
When an Order Is Not Followed
A parenting order is enforceable. Under section 38(1) of the Children’s Law Reform Act, the Ontario Court of Justice may punish by fine or imprisonment a person who does not obey an order made under that Part.
The court may also make compensatory orders, vary the existing order, or impose terms addressing the conduct. Under section 41, an order made outside Ontario may be enforced here in defined circumstances. A parent’s own breach bears on the factors the court weighs on any subsequent application.
Moving With a Child
A move that is likely to have a significant impact on the child’s relationship with the other parent is a relocation, and it carries its own notice and objection requirements, its own burdens of proof, and its own factors.
Foote Law’s guide to relocating with a child after separation sets out the notice period, the objection window, and the questions the court asks.
Separating and Working Out Parenting?
A parenting arrangement turns on which statute applies, on how decision-making responsibility and parenting time are allocated, and on the evidence bearing on the best interests factors.
Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139.
