Child custody and parenting time, with your children first

What custody and parenting time mean in Ontario

Since March 2021, both the federal Divorce Act and Ontario’s Children’s Law Reform Act use new words. Decision-making responsibility (what used to be called custody) is about who makes significant decisions for a child, such as health, education, religion and important activities. Parenting time (what used to be called access) is the time a child spends in each parent’s care.

Decision-making can be shared, divided (for example, one parent handles health and the other education) or given to one parent. During their own parenting time, each parent makes the day-to-day decisions for the child.

Every decision is guided by one test: the best interests of the child. A court gives primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

There’s no automatic 50/50 rule and no presumption in favour of mothers or fathers. The law does say a child should have as much time with each parent as is consistent with the child’s best interests.

How we can help

Most parents want the same thing: children who feel safe, loved and settled. We help you turn that shared goal into a plan that works in real life.

• Parenting plans. We draft detailed, practical plans covering schedules, holidays, school, communication and how future decisions will be made.

• Mediation and collaborative law. Marcus Ashby, an accredited family mediator, helps parents reach agreement outside court when it’s safe to do so.

• Negotiated agreements. We negotiate parenting terms and record them in a separation agreement or consent order you can rely on.

• Court applications. When agreement isn’t possible, we ask the court for a parenting order and present your children’s needs clearly.

• Relocation. We help with the notice rules and the best-interests factors when a parent wants to move with a child, or objects to a move.

• Changing an order. If circumstances have changed, we help you update an existing parenting order or agreement.

How the process works

Every family moves at its own pace. Where parents can talk, the process can be fairly quick; where there is high conflict or a safety concern, it takes longer and needs more care.

1. Free consultation. We learn about your children, your current arrangements and your concerns, and explain your options.

2. Temporary arrangements. Children need routine right away. We help put a workable interim schedule in place while longer-term decisions are made.

3. Negotiation or mediation. We work toward a parenting plan through discussion, mediation or collaborative law. Mediation always starts with screening for family violence and power imbalances, and it isn’t used where it wouldn’t be safe.

4. Court, if needed. If agreement isn’t possible, we start a court case. In most Ontario cases, parents first attend the Mandatory Information Program, and the case moves through conferences with a judge before any trial; a contested parenting case can take many months, sometimes longer.

5. A final agreement or order. Your parenting plan is set out in a signed agreement or court order, so everyone knows what to expect.

6. Reviewing as children grow. A plan that suits a toddler may not suit a teenager. Arrangements can be updated by agreement, or by the court if there’s been a material change in circumstances.

Common mistakes to avoid

• Putting children in the middle. Asking children to carry messages, choose sides or overhear adult conflict causes real harm, and courts take it seriously.

• Linking parenting time to money. Parenting time and child support are separate. Refusing time because support is late, or stopping support because time is missed, can backfire badly.

• Moving without notice. A move that would significantly affect a child’s relationship with the other parent generally needs at least 60 days’ written notice. Moving first and asking later can seriously harm your case.

• Sending heated texts and emails. Keep communication short, polite and child-focused. Assume a judge may read it one day.

• Waiting too long for a schedule. Months without a clear arrangement can create a “status quo” that’s hard to change later. Get advice early.

• Ignoring an existing order. Even if you disagree with a parenting order, follow it while you get advice about changing it.

Putting your children first

Children cope best when the adults around them are steady and predictable. A few things make a real difference, whatever the legal outcome.

What courts look at

To decide what’s in a child’s best interests, a court considers factors such as the child’s needs and stage of development, the strength of each relationship, who has cared for the child in the past, and each parent’s willingness to support the child’s relationship with the other parent.

The court also considers the child’s cultural, linguistic, religious and spiritual upbringing, including Indigenous heritage, and any family violence and its effect on the child.

Hearing your child’s voice

There’s no set age in Ontario when a child gets to choose where to live. A court considers a child’s views and preferences, giving them more weight as the child grows older and more mature. Those views can be shared in ways that don’t put children on the spot, such as through the Office of the Children’s Lawyer or a report from a qualified professional.

Talking to your children

Tell your children together if you can, keep explanations simple and age-appropriate, and reassure them that the separation isn’t their fault. Children don’t need adult details; they need to know they’ll be cared for and that they’re still loved.

What to do next

If you’re worried about your children, you don’t have to work this out alone. A short conversation can make the next few weeks much clearer. If you or your children are in immediate danger, call 911.

When you’re ready, book a free 30-minute confidential consultation with Wren & Ashby, in person, by phone or by video, and we’ll help you take a calm, child-focused next step.