In Ontario, the most important issue in family law proceedings is parenting, and it can have a ripple effect on every other issue involved. In legal terms, it addresses a person’s right and ability to be involved in a child’s life and upbringing.
When most people think of parenting in the legal context, they think of two concepts:
custody and access. But when the federal Divorce Act (DA) was amended in 2021, Ontario changed the wording of the Children’s Law Reform Act (CLRA) to reflect the DA amendments.
As a result of the changes, today’s court orders on parenting, called parenting plans, can be broken down into three separate categories:
- Decision-making responsibility (DMR), which used to be known as custody
- Parenting time (PT), which used to be known as access
- Contact, which was part of access
These categories each govern a different aspect of a parent’s access to, and responsibility for, a child. Therefore, it’s important to understand how they are similar, how they differ, and how courts make decisions about each of them.
All Parenting Plans Are Based on the Child’s Best Interests
If separating parents can agree on how parenting should be decided out of court, they can prepare a parenting plan and submit it to the court to get it turned into an order. If not, they can apply to the court for a judge to decide for them based on the evidence that’s presented.
In all cases, judges determine whether a specific parenting order should be granted based on the best interests of the child, which is codified as a legal principle. In Ontario, this principle appears with the same wording in both the DA for married spouses and in the CLRA for all other parents. But it’s important to note that even non-parents, including grandparents, can apply for parenting orders, so long as it can be shown that it would be in the child’s best interests.
All three categories of parenting court orders ultimately rely on this important legal principle.
Decision-Making Can Be Shared, Split, or Sole
Decision-making responsibility is self-explanatory: it is the right to be responsible for making decisions for a child. Examples include decisions about:
- Education
- Healthcare
- Cultural or religious upbringing
This generally takes one of three forms. Parents can have shared decision-making responsibilities, split decision-making responsibilities, or one parent can have sole decision-making responsibility.
Shared decision-making responsibility means parents share responsibility on each decision. Both parents must show they are willing and able to think and act in the child’s best interests. The judge must also be convinced that the child will not be placed in the middle of a conflict or used as leverage by one parent against the other.
Split decision-making responsibility means that decisions about certain topics are separated between parents. For example, Parent A may have the responsibility to make decisions about healthcare for a child, whereas Parent B may have the responsibility to make decisions about schooling and education. This is most common in situations where the parents cannot communicate effectively in the child’s best interests, or if one parent is better suited at making a particular decision compared to the other.
Parenting Time Can Be Shared, Split, or Supervised
Parenting time governs a parent’s right to spend time with a child, and can be shared, split, or supervised. Parenting time schedules establish the child’s primary residence and can affect how child support is calculated.
To obtain a parenting time order, a parent must show the judge a plan for the care and upbringing of the child that is consistent with the child’s best interests, and that does not pose a risk of harm to the child.
Shared parenting time means that the parents have parenting time with the child in a ratio between 60/40 and 50/50. This ratio is determined for married parents by the Federal Child Support Guidelines. All other parents use the Ontario Child Support Guideline. And the ratio can impact child support calculations. For example, if Parent A is caring for the child for over 60% of the year, then that child is said to spend the vast majority of time with Parent A, and Parent B will likely be required to pay more child support.
Split parenting is when parents have more than one child together, but those children don’t share households. For example, Parent A and Parent B have Child X and Child Y together. Child X lives with Parent A, and Child Y lives with Parent B. This is split parenting, and both parents will likely have to pay child support to each other for the child that is not in their care.
Supervised parenting time is ordered when a judge is concerned that a parent presents a risk of harm to a child, whether that risk be physical, emotional, or psychological.
In these cases, the supervision process allows supervised parents to show their parenting skills and that they do not pose a risk of harm to a child. It also provides opportunities to maintain and develop a relationship with a child.
Supervision can occur at supervision centres. Parents pay a fee for access, where they spend time and play with their child while being supervised by a qualified childcare professional. Sometimes those professionals can follow the parent and the child on an outing outside of the centre.
Supervision centres can be expensive. Therefore, judges sometimes allow non-professionals known to both parents, often family members or friends, to supervise parenting time and ensure that the supervised parent is acting in accordance with the child’s best interests.
Non-Parental Contact Can Be Ordered
A contact order defines a non-parent’s ability to spend time with a child. This includes grandparents and other family members.
Much like with parenting time orders, to get a contact order a non-parent must show a judge a plan for the care and upbringing of the child that is consistent with the child’s best interests, and that the non-parent does not pose a risk of harm to the child.
