When parents separate or divorce, few questions feel more urgent, or more overwhelming, than what happens to the children. How much time will each parent have? Who decides where the kids go to school or what medical treatment they receive? These concerns sit at the heart of Ontario family law, and understanding how courts answer them can make a real difference in how you approach your situation.
Two legal concepts govern these questions: parenting time and decision-making responsibility. If you’ve heard the older terms “custody” and “access,” these are their modern replacements, and the change in language reflects a meaningful shift in how the law thinks about children after separation.
The Legal Framework: Which Law Applies to You?
In Ontario, parenting arrangements are governed by two statutes:
- The Divorce Act (federal) applies to married spouses who are divorcing.
- The Children’s Law Reform Act (CLRA) (provincial) applies to unmarried parents and to separating spouses who are not seeking a divorce.
While these are separate laws, they share the same foundational principle: every decision involving a child must be guided by the best interests of the child. That standard is not just a legal formality, it is the lens through which every judge evaluates every parenting dispute.
What Is Parenting Time?
Parenting time refers to the periods when a child is in the care of a particular parent. This includes time when the child is physically present with that parent, as well as periods when the parent is legally responsible for the child, for example, while the child is at school during that parent’s scheduled time.
During parenting time, a parent has the right to make routine, day-to-day decisions for the child and to receive information about the child’s health, education, and welfare.
Parenting time arrangements vary considerably from family to family. Some children live primarily with one parent and have scheduled time with the other. Others move between two homes on a more equal basis, sometimes called a “shared parenting” arrangement.
Equal parenting time is not automatic. Courts do not start from a presumption of 50/50. Instead, judges look carefully at what schedule will best support the child’s emotional stability, safety, and development. While Ontario courts generally recognize the value of children maintaining meaningful relationships with both parents, this principle is always balanced against, and can be overridden by the child’s best interests. Where contact with a parent poses a risk to the child, the court has the authority to limit, restrict, or supervise that parent’s time.
What Is Decision-Making Responsibility?
Decision-making responsibility is the authority to make significant choices about a child’s life. It covers major decisions in four main areas:
- Health care: medical treatment, therapy, mental health services
- Education: school choice, learning supports, extracurricular decisions
- Religion and cultural upbringing
- Significant extracurricular activities
Day-to-day decisions (what the child eats, their bedtime, activities during a given afternoon) are handled by whichever parent the child is with at the time. Decision-making responsibility concerns the bigger-picture choices.
There are two primary structures:
Sole decision-making responsibility means one parent holds final authority over major decisions. The other parent does not need to consent, though they may still be consulted. Courts may order this arrangement when parents have a history of high conflict, communication has broken down, or cooperation appears unworkable.
Joint decision-making responsibility means both parents must consult with each other and agree before making major decisions. This arrangement works best when parents can communicate respectfully and put the child’s needs first. It is not simply awarded because both parents want it, courts assess whether the parents can realistically cooperate.
A word of caution: joint decision-making is often misunderstood. It does not mean equal parenting time. A child can live primarily with one parent while both parents share decision-making authority, or vice versa. Parenting time and decision-making responsibility are separate issues and are decided independently.
How Courts Decide: The Best Interests of the Child
Every parenting order in Ontario is built on the best interests of the child test. Courts do not apply a formula. Instead, judges weigh a range of statutory factors specific to each family’s circumstances. These include:
- The child’s age, needs, and stage of development
- The strength and quality of the child’s relationship with each parent
- Each parent’s willingness and demonstrated ability to support the child’s relationship with the other parent
- The history of caregiving and who has been the child’s primary caregiver
- The child’s own views and preferences, given appropriate weight based on their age and maturity
- The stability and continuity of the child’s living environment
- Any history of family violence, abuse, or neglect
- The mental and physical health of each parent
Under the Divorce Act, judges are also required to give primary consideration to the child’s physical, emotional, and psychological safety. This means that a parent who has engaged in family violence may face significant restrictions, regardless of their desire for parenting time or decision-making authority.
Why the Language Changed in 2021
In March 2021, amendments to the federal Divorce Act introduced the terms “parenting time” and “decision-making responsibility” to replace “custody” and “access.” The provincial Children’s Law Reform Act was updated to mirror this language.
The change was deliberate. The old custody framework framed separation as a contest where one parent “won” custody and the other was granted “access,” as though visiting their own child. This framing often fuelled conflict and encouraged adversarial positioning.
The new language reflects a different philosophy: parenting after separation is about responsibility, not ownership. Both parents are expected to remain involved in their children’s lives in a way that is defined by the children’s needs, not the parents’ preferences.
Resolving Parenting Disputes: Do You Have to Go to Court?
Not necessarily and in many cases, going to court should be the last resort, not the first.
Ontario offers several alternatives to litigation:
- Mediation: a neutral third party helps parents negotiate a parenting plan
- Collaborative family law: both parents and their lawyers commit to resolving issues outside of court
- Parenting coordination: used for ongoing disputes, a parenting coordinator helps implement and interpret an existing parenting plan
These processes are typically faster, less expensive, and less damaging to co-parenting relationships than courtroom litigation. A negotiated parenting plan can also be more flexible and tailored to your family’s specific needs than a court order.
When parents cannot reach agreement, a judge will issue a parenting order setting out each parent’s time and responsibilities. That order is legally binding. If your circumstances change significantly i.e., a job relocation, a change in the child’s needs, a parent’s remarriage, you can apply to the court to vary the existing order.
Practical Takeaways for Parents
If you are navigating a separation or divorce in Ontario, keep these points in mind:
Focus on the child, not the conflict. Courts are watching how you behave. A parent who actively supports the child’s relationship with the other parent even when it’s difficult is more likely to receive a favourable parenting arrangement.
Document your involvement. Courts look at the history of care. Keeping records of school pickups, medical appointments, and day-to-day parenting can support your position.
Consider the child’s perspective. Depending on age and maturity, a child’s views carry real weight in Ontario courts. This doesn’t mean children choose where they live, but it does mean their voice matters.
Get legal advice early. Parenting arrangements made in the early days of a separation even informal ones can become entrenched and harder to change. Understanding your rights before you make agreements is far better than trying to undo them later.
Speak with an Ontario Family Lawyer
Parenting time and decision-making responsibility are among the most consequential legal decisions you will face. The stakes are high, and the law is nuanced. Getting sound legal advice from a family lawyer who understands both the legal framework and your family’s specific circumstances is not a luxury, it’s a necessity.
At H&H Law Group, our experienced family law team helps Ontario parents understand their rights, negotiate parenting arrangements, and, where necessary, advocate for them in court.
Book an appointment: https://hhlawgroup.ca/contact/
Email Us: info@hhlawgroup.ca