Custody and Access 101

This article was updated on March 1, 2021 to reflect the changes to the Divorce Act and Children’s Law Reform Act.

Decision-making responsibility with respect to children and parenting time in Ontario (formerly referred to as “custody” and “access”)* are dealt with under two pieces of legislation: the Ontario Children’s Law Reform Act (“CLRA”) and the federal Divorce Act, depending on the situation. The Divorce Act applies when spouses have commenced divorce proceedings. The CLRA applies in all other parenting disputes in Ontario (for instance, where spouses have separated without commencing divorce proceedings, where the parents of a child were not married, etc.).

Despite some differences between the CRLA and the Divorce Act, the results under each will be substantially similar as the controlling question in all cases related to a parenting issue (whether related to decision-making or parenting time) is always the same: what is in the best interests of the child? The factors considered by courts in answering this question is discussed further below under the heading: “What Does a Court Consider in Making Parenting Orders?”

What is the Difference between “Decision-Making Responsibility” and “Parenting Time”?

“Decision making responsibility” in the parenting context means the authority to make decisions concerning that child, including decisions related to education, non-emergency medical decisions, religious decisions, and decisions about extracurricular activities. If one parent is awarded sole decision-making responsibility, that parent will exercise all powers as the legal guardian of that child. The non-decision-making parent, who may have parenting time with the child, will not have the right to participate or be involved in major decisions affecting the child’s welfare and development. A non-decision making parent, may, in times of emergency or when the decision-making parent is not available, exercise some limited decision-making responsibilities. Joint decision-making means that both parents have the right to make major decisions concerning the child’s health, education, and upbringing and are usually expected to do so together. Some ways to implement joint decision-making responsibility are discussed below under the heading “What are Some Different Kinds of Parenting Arrangements?”

“Parenting time” means the right to visit with or be visited by the child, and for the parent with parenting time to make inquiries and be given information on the health, education and welfare of the child.

Who Can Apply for Decision-Making Responsibility and/or Parenting Time?

It is not only parents who can apply for decision-making responsibility or time with a child. Any other persons, such as a grandparent or even someone not related to the child, may apply for a court for an order respecting these issues. However, under the Divorce Act, a person wishing to apply for decision-making responsibility or time with a child who is not a parent must obtain leave of the court to apply for a “contact order”. Courts will only allow such third party applications to be brought by persons who have been previously involved in the child’s life.

What does a Court Consider in Making Parenting Orders?

The CLRA provides that both parents have an equal entitlement to decision-making responsibility. Thus in proceedings under the CLRA, a court starts from the premise that both parents are entitled to decision-making responsibility. However, the courts will diverge from this if it is in the best interests of the child to do so. Courts are not concerned with the interests or rights of the adults involved. The Divorce Act does not contain a similar presumption to equal entitlement.

Coming to a decision about the best interests of the child involves a consideration of all the child’s needs and circumstances. The Divorce Act and CRLA provide a list of factors for a court to consider in determining the best interests of a child

• 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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• 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 person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• any family violence; and
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The Divorce Act and CRLA also provide that “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child”, also known as the “maximum contact principle”.

Courts only consider the past conduct of an applicant for a parenting or contact order if the court is satisfied that the conduct is relevant to the person’s ability to act as a parent, or if that conduct relates to violence or abuse against his or her spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.

What are Some Different Kinds of Parenting Arrangements?

Courts have wide discretion to structure parenting orders for definite or indefinite periods of time, and subject to any terms, conditions, or restrictions that the court sees fit. What happens in each case is highly fact-specific.

Courts may grant parenting orders on an interim or temporary basis, they may grant joint shared decision making orders (which are common), sole decision making orders, supervision orders, orders to vary or terminate pre-existing parenting orders, or other kinds of related orders such as order restricting mobility (for instance, to prevent a parent from moving a child to another province). Courts may also grant third party decision making orders (though these are rare) or third party contact orders, which are more common (for instance, orders for grandparents to be able to spend time with their grandchildren).

Because the best interests of the child are the primary concern of the courts – not parental rights – ongoing parental conflict or an inability between the parents to constructively share decision-making responsibility may impact a court’s decision. However, one parent creating conflict and claiming sole decision-making responsibility on the basis of their inability to work with the other parent will not lead to an order of sole decision-making responsibility. In assessing whether joint decision-making is appropriate, the courts will consider whether there is a sufficient degree of cooperation and communication between the parties that will enable effective parenting and meet the needs of the child.

However, there are options that allow for joint decision-making even in situations of high levels of conflict between the parents. This could include the assistance of a parenting coordinator to resolve disputes and/or a parallel parenting order, also called divided decision-making. Parallel parenting orders may include things such as: each parent assuming responsibility for the child while the child is with that parent; a parent having no say over the actions of the other parent while the child is in the care of the other parent; contact between the parents being minimized; and information about the child being shared in writing. Another option is to carve out specific areas of exclusive decision-making for each parent (for instance, one parent makes decisions about education, the other makes decisions about health). Again, in determining whether a parallel parenting order or divided decision making is appropriate, the courts will only consider whether such an order would be in the best interests of the child.

Where a joint decision-making order of any kind is not appropriate, courts may use a parenting order to ensure that the parent and child continue to have a relationship through spending time together.

Parenting issues can be complex. If you require assistance with any parenting issues, please contact a member of the McKenzie Lake family law team.

*As March 1, 2021, the Divorce Act and CLRA replaced “custody” with “decision-making responsibility” and “access” with “parenting time”, or in, the case of a third party, a “contact order”.

This post was written by Family Law Lawyer Megan Strachan.