Decision-Making Responsibility and Parenting Time in Ontario, Explained
If you are separating and have children, you may still find yourself using words like “custody” and “access.”
Those terms were used in Canadian family law for many years. But since March 1, 2021, the federal Divorce Act and Ontario's Children's Law Reform Act have used different language for new parenting arrangements: decision-making responsibility and parenting time.
The change is useful because these two terms describe different parts of parenting after separation.
One answers:
Who makes important decisions for the child?
The other answers:
When is the child in each parent's care?
Understanding that distinction can make it much easier to think about what a workable parenting arrangement should actually look like.
What Is Decision-Making Responsibility?
Decision-making responsibility refers to responsibility for making significant decisions about a child's well-being.
Under the Divorce Act, this includes important decisions involving:
health;
education;
language and culture;
religion and spirituality; and
significant extracurricular activities.
Decision-making responsibility does not necessarily have to be allocated in an all-or-nothing way.
It can be given to one parent, shared by both parents or divided by subject.
For example, parents may share responsibility for major medical and educational decisions.
In another family, one parent may be responsible for education decisions while both parents share responsibility for health decisions.
The Divorce Act expressly allows decision-making responsibility—or particular aspects of it—to be allocated to one or more people. Ontario's Children's Law Reform Act similarly allows a court to allocate decision-making responsibility, or any aspect of it, to one or more persons.
Decision-making responsibility is therefore about authority over important decisions, not simply where the child spends more time.
What Is Parenting Time?
Parenting time refers to the period during which a child is in a parent's care.
It is broader than simply counting the hours when the parent and child are physically together.
For example, under the Divorce Act, parenting time can include periods when the child is at school or daycare but remains in that parent's care.
Parenting arrangements may set out:
regular weekdays and weekends;
school holidays;
summer schedules;
birthdays;
holidays and special occasions;
transportation and exchanges; and
other practical details about the child's routine.
Unless a court orders otherwise, a parent with parenting time also generally has authority to make day-to-day decisions affecting the child during that time.
That can include ordinary matters such as meals, bedtime and day-to-day activities.
This is different from making major decisions about education, health or religion.
Can One Parent Have More Parenting Time While Both Parents Share Decisions?
Yes.
Parenting time and decision-making responsibility are separate issues.
For example, a child could live primarily with one parent while both parents share responsibility for major educational and health decisions.
Another family might have parenting time divided relatively evenly while one parent has responsibility for a particular category of important decisions.
There is no requirement that decision-making responsibility and parenting time be divided in exactly the same way.
The goal is to create an arrangement that works for the particular child rather than trying to make every category mathematically identical.
Does Ontario Still Use the Word “Custody”?
Older agreements and court orders may still use the terms “custody” and “access,” and those documents do not become invalid simply because the terminology changed.
For Divorce Act orders made before March 1, 2021:
custody is generally treated as decision-making responsibility and parenting time;
access for a parent is treated as parenting time; and
access for a non-parent is generally treated as contact.
If an older parenting order is later changed, the new terminology will generally be used.
So if your existing documents still say “custody,” that does not necessarily mean you need a new order simply because the language has changed.
Which Law Applies to Parenting Arrangements in Ontario?
This depends on the family's circumstances.
The federal Divorce Act generally governs parenting issues where married spouses are divorcing.
Ontario's Children's Law Reform Act can apply in other situations, including where parents were never married or where married parents separate without proceeding under the Divorce Act.
Both laws now use the concepts of decision-making responsibility and parenting time, and both centre parenting decisions on the child's best interests.
There are, however, differences in how the statutes operate.
That is why the correct legal framework matters when a parenting dispute arises.
How Does a Court Decide Parenting Time and Decision-Making Responsibility?
If parents cannot reach an agreement and a court must decide, the central legal test is the best interests of the child.
Under the Divorce Act, a court making a parenting or contact order must consider only the child's best interests.
The court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Ontario's Children's Law Reform Act uses the same primary consideration when determining a child's best interests.
The focus is therefore not on which arrangement feels most equal to the parents.
It is on what arrangement best serves this particular child.
What Factors Are Considered in the Best-Interests Test?
The law requires the court to consider the child's individual circumstances.
Factors can include:
the child's needs, considering their age and stage of development;
the child's need for stability;
the nature and strength of the child's relationship with each parent, siblings, grandparents and other important people;
the history of care;
each parent's willingness to support the child's relationship with the other parent;
the child's views and preferences, giving appropriate weight to age and maturity;
the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage;
each person's plans for the child's care;
each parent's ability and willingness to meet the child's needs;
the parents' ability and willingness to communicate and cooperate where appropriate; and
family violence and its impact on the child and the parenting arrangement.
These factors are not a scoring exercise.
One factor may carry much more weight than another depending on the child's circumstances.
How Does Family Violence Affect Parenting Decisions?
Family violence is specifically included in the best-interests analysis.
The legislation requires courts to consider not simply whether violence occurred, but also factors such as:
its nature, seriousness and frequency;
whether there is a pattern of coercive and controlling behaviour;
whether the child was directly or indirectly exposed to it;
the harm or risk of harm to the child;
whether it compromises the safety of the child or another family member; and
whether requiring the parents to cooperate would be appropriate in the circumstances.
This is important when considering shared decision-making.
An arrangement requiring frequent cooperation may work well for some parents.
It may be inappropriate or unsafe in another family.
The law does not prioritize cooperation between parents at the expense of a child's or parent's safety.
Is There an Automatic 50/50 Parenting Schedule in Ontario?
No.
There is no legal presumption that children must spend exactly half of their time with each parent.
Justice Canada specifically confirms that the Divorce Act does not contain a presumption of equal parenting time.
The legislation does say that a child should have as much time with each parent as is consistent with the child's best interests.
That is not the same thing as requiring equal time.
For one child, an equal schedule may work very well.
For another, a different arrangement may better reflect:
school and daycare;
each parent's work schedule;
distance between homes;
the child's age;
established routines;
special needs;
the history of caregiving; or
safety concerns.
The amount of parenting time has to be determined through the best-interests analysis rather than a mathematical starting point.
Are Mothers Automatically Favoured in Parenting Cases?
No law directs Ontario courts to prefer mothers simply because they are mothers.
When a court is deciding a parenting arrangement, the applicable legislation requires the decision to be based on the best interests of the particular child.
The history of care can matter.
For example, if one parent has historically been primarily responsible for medical appointments, school routines or particular needs, that history may be relevant.
But that is different from applying a legal preference based on whether the parent is the mother or father.
Does Equal Parenting Time Mean Equal Decision-Making?
No.
A 50/50 parenting schedule does not automatically mean that every important decision has to be made jointly.
Likewise, a parent who has less parenting time is not automatically excluded from decision-making responsibility.
The court can allocate these responsibilities separately based on what is in the child's best interests.
This is one reason parents should avoid treating the parenting schedule and decision-making responsibility as one negotiation.
They answer different questions.
Can Parents Create Their Own Parenting Arrangement?
Yes.
Parents do not necessarily need a judge to create their parenting arrangement.
They can negotiate a parenting plan or include parenting terms in a separation agreement.
A parenting plan can address practical issues such as:
the parenting schedule;
holidays and vacations;
how major decisions will be made;
communication with the child while the child is with the other parent;
exchange arrangements;
school and extracurricular activities;
travel;
information sharing; and
how future disagreements will be handled.
Where parents submit an agreed parenting plan to the court, both the Divorce Act and Ontario legislation allow the court to incorporate the agreed terms into a parenting order, subject to any changes necessary to protect the child's best interests.
Does a Parent With Parenting Time Have a Right to Information?
Generally, yes.
Unless a court orders otherwise, a person with parenting time or decision-making responsibility under the Divorce Act can request and receive information about the child's well-being, including health and education information, subject to applicable laws.
Ontario's legislation similarly recognizes information rights connected with parenting time and decision-making responsibility.
That means a parent does not necessarily lose access to information from a school or healthcare provider simply because the child spends more time with the other parent.
The specific terms of an agreement or order can still matter.
Where Should Parents Start?
It can help to separate the parenting discussion into two questions.
First:
What significant decisions need to be made for our child, and how should responsibility for those decisions be allocated?
Then:
What parenting schedule best meets our child's needs and gives them appropriate time with each parent?
From there, consider the practical details.
What does the school week look like? How far apart do the parents live? What schedule has the child been used to? How will holidays work? What decisions require consultation? How will information be shared?
Starting with those questions can be much more productive than beginning with a debate over who should “get custody.”
The goal is not to give either parent a title.
It is to build a parenting arrangement that is safe, workable and focused on the child's needs.
Frequently Asked Questions
What is the difference between parenting time and decision-making responsibility?
Parenting time deals primarily with when a child is in a parent's care. Decision-making responsibility deals with authority to make significant decisions about the child's well-being, such as education and health.
Is custody still a legal term in Ontario?
Older orders and agreements may still use “custody” and “access.” For new parenting arrangements, Ontario and federal legislation now generally use “decision-making responsibility” and “parenting time.”
Does parenting time have to be 50/50?
No. There is no presumption of equal parenting time under the Divorce Act. The schedule must be based on the child's best interests.
Can parents share decision-making if the child lives mainly with one parent?
Yes. Decision-making responsibility and parenting time can be allocated differently.
Who makes everyday decisions during parenting time?
Unless a court orders otherwise, the person exercising parenting time generally has authority to make ordinary day-to-day decisions during that time.
Does the child get to choose which parent to live with?
There is no fixed age at which a child simply chooses the parenting arrangement. The child's views and preferences are one factor in the best-interests analysis, and the weight given to them depends in part on the child's age and maturity.
Does family violence affect shared decision-making?
Yes. Family violence and its effect on safety and the ability of parents to cooperate are specifically included in the best-interests analysis.
Start With a Clearer Picture of Your Separation
Parenting arrangements are only one of the issues that can arise when a relationship ends.
If you are in the early stages of separation, our free Separation Checklist can help you organize the practical and legal issues that may need your attention—from parenting and financial information to important documents and next steps.
Download the Separation Checklist and use it as a starting point for the decisions ahead.
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This article provides general legal information only and is not legal advice. Reading it does not create a solicitor-client relationship.
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