When a marriage breaks down, one of the most important and emotionally difficult issues parents face is how their children will be cared for going forward. If you are going through a separation or divorce in Ontario, you may be worried about where your children will live, who will make important decisions about their upbringing, and how your relationship with your children will be affected.
Ontario law does not treat these questions as a contest between parents. Instead, the courts focus entirely on the well-being of the child. Every parenting arrangement whether agreed to by the parents or ordered by a court must serve the child’s best interests.
Why Ontario Law No Longer Uses the Term “Custody”
If you have been researching this topic, you may have noticed that some sources use the term “custody” while others refer to “parenting time” and “decision-making responsibility.” Understanding the difference matters, because the terminology reflects a meaningful change in how Ontario law approaches parenting after separation.
In March 2021, significant amendments to the federal Divorce Act came into force. These amendments replaced the terms “custody” and “access” with two new concepts:
- Decision-making responsibility: The authority to make significant decisions about a child’s well-being, including decisions about health care, education, culture, language, religion, and significant extracurricular activities. Decision-making responsibility can be held by one parent alone (sole decision-making responsibility) or shared between both parents (joint decision-making responsibility).
- Parenting time: The time a child spends in the care of each parent. During their parenting time, each parent has the authority to make day-to-day decisions about the child (such as meals, bedtime, and routine activities). Parenting time replaces the former concepts of “custody” and “access.”
Ontario’s Children’s Law Reform Act (CLRA) was also amended to align with this updated terminology. The shift away from “custody” was deliberate: the old language implied ownership or control over a child, while the new terms emphasize the parental responsibilities and the child’s right to a meaningful relationship with both parents.
Which law applies to you? The Divorce Act applies to married couples who are divorcing. The Children’s Law Reform Act applies to unmarried parents and to married parents who are separating but not yet seeking a divorce. The best interests of the child test applies under both statutes, but the procedural framework differs slightly. Your lawyer can advise you on which law governs your situation.
What Is the “Best Interests of the Child” Test?
The best interests of the child is the governing legal standard for all parenting decisions in Ontario. Courts do not automatically favour one parent over the other, not on the basis of gender, income, or any other single factor. Instead, judges evaluate all relevant circumstances to determine what arrangement will best support the child’s overall well-being.
Under the amended Divorce Act, the court must consider a detailed list of factors when assessing the child’s best interests. These include:
- The child’s physical, emotional, and psychological needs, including the child’s need for stability.
- The nature and strength of the child’s relationship with each parent, each sibling, and each grandparent, as well as any other person who is important to the child.
- Each parent’s willingness to support the child’s relationship with the other parent.
- The history of care of the child, who has been the primary caregiver up to this point.
- The child’s own views and preferences, taking into account the child’s age and maturity.
- The child’s cultural, linguistic, religious, and spiritual upbringing and heritage.
- Any plans proposed by a parent for the child’s care (a “parenting plan”).
- Each parent’s ability and willingness to communicate and cooperate with the other parent on matters affecting the child.
- Any family violence and its impact on the child and on the ability and willingness of the person who engaged in the violence to care for the child.
- Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, or well-being of the child.
Important: No single factor is decisive. The court takes a holistic approach, weighing all relevant circumstances before making a determination. The weight given to each factor depends on the specific facts of the case.
How Family Violence Affects Parenting Decisions
The 2021 Divorce Act amendments gave family violence a more prominent role in the best interests analysis than the previous law did. Family violence is now specifically defined in the Divorce Act and includes not only physical abuse but also sexual abuse, threats, psychological abuse, harassment, coercive and controlling behaviour, and the killing or harming of an animal or damaging of property.
When family violence is raised, the court must consider several specific factors, including the nature, seriousness, and frequency of the violence; whether there is a pattern of coercive and controlling behaviour; who was harmed or exposed to the violence (including the child); whether the child was directly or indirectly exposed; and the impact of the violence on the child’s well-being and on the ability and willingness of the person who engaged in the violence to care for and meet the needs of the child.
Key point: Allegations of family violence are taken seriously by Ontario courts. If family violence is a factor in your situation, it is important to raise it early, document it carefully, and work with a lawyer who understands how the court evaluates these issues. At the same time, courts are alert to false or exaggerated allegations and will consider the credibility of the evidence presented.
Temporary (Interim) Parenting Orders During Divorce
Divorce proceedings can take months or even years to resolve. Children cannot wait that long for certainty about where they will live and how decisions will be made. For this reason, courts can issue temporary (interim) parenting orders that remain in effect until a final order is made.
Interim orders address the same issues as final orders, parenting time schedules, decision-making responsibility, and sometimes conditions such as supervision but they are made on a faster timeline and usually based on more limited evidence (typically affidavits rather than a full trial).
Why interim orders matter: Although they are described as “temporary,” interim orders often have a significant influence on the final outcome. Courts tend to consider how well the interim arrangement has been working for the child when making long-term decisions. If a child has settled into a stable routine under an interim order, the court may be reluctant to disrupt that stability. For this reason, it is important to take interim order hearings seriously and to ensure the arrangement serves the child’s best interests from the outset.
Parenting Time Schedules and Parenting Plans
Parenting time refers to the schedule that determines when the child will be in each parent’s care. The schedule does not need to be an equal split between parents, what matters is that the arrangement serves the child’s best interests.
In structuring parenting time, courts and parents consider factors such as the child’s age and developmental stage (younger children often benefit from shorter, more frequent contact with both parents rather than extended blocks); each parent’s work schedule and availability; the distance between the parents’ homes; the child’s school, activities, and social connections; and the child’s own preferences, particularly as they get older.
The maximum parenting time principle: Under section 16(6) of the Divorce Act, the court must 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. This does not mean equal time is the default, it means the court should maximize each parent’s involvement to the extent that doing so serves the child. This principle does not apply where there are concerns about family violence or the safety of the child.
Parenting plans: A parenting plan is a detailed written document that sets out how parents will share parenting time and make decisions about their children. A good parenting plan typically covers the regular weekly schedule, holiday and vacation schedules, transportation and exchange arrangements, communication protocols between the parents, how future disagreements will be resolved, and rules about introducing the child to new partners. Parenting plans can be developed through negotiation, mediation, or with the assistance of lawyers, and can be incorporated into a court order or separation agreement.
Resolving Parenting Disputes Outside of Court
Ontario family courts strongly encourage parents to resolve parenting disputes outside of the courtroom whenever possible. Going to trial over parenting arrangements is expensive, time-consuming, and emotionally draining for everyone involved, especially the children.
Several alternatives to trial are available:
- Mediation: A neutral third-party mediator helps the parents negotiate a mutually acceptable arrangement. Mediation is voluntary, confidential, and typically far less adversarial than court proceedings. Many Ontario families are able to develop comprehensive parenting plans through mediation.
- Collaborative family law: Each parent retains their own specially trained collaborative lawyer. The parents and their lawyers work together in structured meetings to reach an agreement without going to court. If the collaborative process breaks down, the collaborative lawyers must withdraw, and each parent retains new counsel for litigation.
- Arbitration: A private arbitrator (usually a lawyer or retired judge) makes a binding decision after hearing from both sides. Arbitration is generally faster than court and allows the parties to choose their decision-maker, but the decision is final and has limited grounds for appeal.
- Parenting coordination: For families with ongoing high-conflict disputes about day-to-day parenting issues, a parenting coordinator can help resolve specific disagreements without returning to court each time.
When parents are able to reach an agreement through any of these processes, the agreement can be formalized into a consent court order or incorporated into a separation agreement, giving it legal force.
Note: Mediation may not be appropriate in all cases, particularly where there is a history of family violence, a significant power imbalance between the parties, or concerns about the safety of a parent or child. In those situations, a court process with appropriate protections may be necessary.
What Happens If the Court Must Decide?
If parents are unable to reach an agreement, the court will make the parenting determination after a hearing or trial. In contested parenting cases, courts rely on evidence presented by both parties, which may include sworn affidavits, financial disclosure, testimony from the parents and other witnesses, school and medical records, and expert evidence.
The Office of the Children’s Lawyer (OCL): In some cases, the court may request a report from the Office of the Children’s Lawyer, a branch of Ontario’s Ministry of the Attorney General. The OCL can appoint a lawyer to represent the child’s interests or a clinical investigator to prepare a report (sometimes called a “voice of the child” report or a “clinical investigation”) that provides the court with an independent assessment of the child’s needs, wishes, and circumstances. OCL involvement is at no cost to the parents.
Section 30 assessments: Under section 30 of the Children’s Law Reform Act, the court may also order a professional assessment by a qualified assessor (usually a psychologist or social worker) to evaluate the parenting abilities of each parent and the needs of the child. Unlike OCL reports, section 30 assessments are typically paid for by the parties and can be expensive, but they provide detailed clinical analysis that can be very influential in the court’s decision.
Court proceedings for parenting disputes can be emotionally and financially demanding. Having experienced legal representation is important to ensure your evidence is presented effectively and your rights are protected throughout the process.
What Happens If a Parent Wants to Relocate?
The 2021 Divorce Act amendments introduced detailed provisions governing relocation, a significant change from the previous law, which had no specific relocation framework and left courts to develop the rules on a case-by-case basis.
Under the current law, a parent who wishes to make a “relocation” (defined as a change in the child’s place of residence that is likely to have a significant impact on the child’s relationship with the other parent or any person with a role in the child’s life) must provide at least 60 days’ written notice to the other parent before the planned move. The notice must include the expected date of the move, the new address, and a proposal for how parenting time and decision-making responsibility would be adjusted.
If the other parent objects, the matter goes before the court. The burden of proof depends on the existing parenting arrangement. If the child spends substantially equal time with both parents, the relocating parent bears the burden of showing that the relocation is in the child’s best interests. If the child spends the majority of time with the relocating parent, the other parent bears the burden of showing that the relocation is not in the child’s best interests.
Key point: Relocation disputes are among the most difficult and high-stakes parenting issues in Ontario family law. If you are considering a move or if the other parent is, it is important to get legal advice before taking any steps, because failing to follow the notice requirements can have serious consequences, including the court drawing a negative inference about the parent’s conduct.
Can Parenting Orders Be Changed After They Are Made?
Parenting orders are not necessarily permanent. As children grow and family circumstances change, existing arrangements may need to be updated. In Ontario, a parenting order can be varied (changed) if there has been a material change in circumstances since the order was made.
Examples of changes that may justify a variation include a significant change in either parent’s living situation or work schedule, the child’s evolving needs as they grow older, a parent’s failure to comply with the existing order, new concerns about family violence or substance abuse, or a parent’s desire to relocate.
Important: The court does not vary parenting orders lightly. The parent seeking the change must demonstrate that there has been a genuine material change in circumstances and that the proposed new arrangement is in the child’s best interests. Simply being unhappy with the existing order is not sufficient grounds for a variation.
Get Guidance on Parenting and Custody Matters in Ontario
Parenting decisions made during a separation or divorce are among the most important determinations a family court can make and among the most stressful experiences a parent can go through. Understanding how the process works, what the court considers, and what options are available to you can make a meaningful difference in both the outcome and your ability to move forward with confidence.
At H&H Law Group, our family law team helps parents across Ontario navigate parenting disputes with care, clarity, and a commitment to the best interests of the children involved. Whether you are at the beginning of a separation, dealing with a contested parenting matter, or seeking to modify an existing order, we are here to help.
Contact H&H Law Group today to schedule a confidential consultation. We will listen to your situation, explain your options, and help you take the right next steps for your family.