Child Custody and Decision Making: Ontario Parents’ Guide (14 Things)
Navigating child custody (decision-making) matters can feel overwhelming for parents facing separation or divorce. This comprehensive guide breaks down Ontario’s family law in clear, practical terms, explaining the key differences between decision-making responsibilities and parenting time.
Whether you’re seeking joint or sole custody arrangements, this guide by Angela Daniels, a family lawyer in Ottawa, provides the essential knowledge you need to understand your options and make informed decisions that prioritize your child’s well-being throughout this challenging time.
Parents’ Guide to Child Custody and Decision Making
In this guide, you’ll learn about the differences between decision-making and parenting time (formerly known as child custody and access). You’ll discover how Ontario courts determine what’s best for children, what happens when parents disagree on major decisions, and your rights regarding moving with your child.
Can you use help with child custody and decision making rights in your family? Reach out to Angela Daniels, an Ontario family law lawyer with 18 years of experience.
1. What’s the Difference Between Child Custody and Access in Ontario?
What’s the difference between child custody and access in Ontario, Canada?
To begin with, child custody (now referred to as decision-making) is essentially the parents’ ability to make significant decisions in a child’s life.
Decision-making (Child Custody): the parents’ ability to make a major decision in a child’s life.
And if you have joint decision-making, it means that both parents decide together. If it’s sole decision-making, only one decides.
4 Major Areas of Decision Making
When we say decision-making (or custody), we’re talking about four major areas.
- Health
- Education
- Cultural, language, religion, and spirituality
- Significant extracurricular activities
Those are the four major areas that apply. There’s legislation that indicates that simple day-to-day decision-making does not apply. This means that whatever the parent does within their home, they can make minor decisions that fall outside of these four areas. These rights primarily pertain to major decision-making.
Access (Parenting Time)
So the question is, custody and access. So what is access?
Parenting Time (Access): Who the child spends time with.
Access is now referred to as parenting time. A long time ago, it was called access, which simply refers to who the child spends time with.
You can have different people decide how they want to arrange access.
It could be 50-50, or it could be with one parent full-time and the other parent with every other weekend. Essentially, everyone can come up with a schedule that they jointly agree upon. If they can’t agree, then a judge makes that decision.
But you decide what that looks like. So, you decide where the child lives, at what time the exchange will take place, where the exchange will be held, and other details.
2. Who gets to make important decisions about my child?
That’s a good question. The law specifies that, if you go to court, the judge may actually decide who makes that decision. Or if you make a decision with your ex in the separation agreement, then you’ll get to decide together.
Who makes the important decisions? It depends on what’s written in the court order or separation agreement.
The parenting plan will outline who makes which decision. Sometimes, you may agree that one parent decides which school the child attends, and the other parent decides what kind of medication or medical treatment the child receives.
So, who gets to decide is based on what the parents agree to in a written agreement or court order.
3. How do courts determine custody and access arrangements?
When the parents don’t come to an agreement, how do courts determine custody and access arrangements?
They use evidence before them. This evidence includes:
- An affidavit by each parent
- Form 35.1
- Expert testimony
- Office of the Children’s Lawyer
- Voice of the Child Report (VOC)
- Section 30 report
- Other witnesses, other friends, teachers, doctors
This is how the courts determine custody and access arrangements.
They look at all the evidence we provide. The parties supply this evidence. The judge does not go and look for it. The parties present all the evidence to the judge, who then examines it and decides what they believe is in the child’s best interest.
The only test in Ontario is: what is in the child’s best interest.
Therefore, the judge will make that determination based on all the information before them.
If lawyers don’t provide the judge enough evidence, then the judge does not have sufficient evidence to make a decision, and sometimes they’ll just make a decision. So it’s up to the parties to provide as much evidence as possible to help the judge make the best decision possible.
4. Can I have joint custody but limited access?
Yes, you can have joint custody, which just means joint decision-making. You can make this joint decision-making about everything and see a child once a month.
Access can depend on whatever time you have available to spend in person or virtually. Some people don’t have time to see their children, and some people live far away. So, while you could have joint decision-making, you might also decide on every other weekend, or once a month, twice a month, or you can decide with the other parent.
You don’t have to have 50-50 parenting time with joint custody – they are two different things.
What happens when parents disagree on major decisions?
If they have a written court order or a separation agreement that stipulates what to do in that situation, that will be the governing document. If they don’t have anything like that, then they have to take another step.
- This could involve hiring a mediator or a parenting coordinator.
- Sometimes, two lawyers will negotiate these decisions.
- Alternatively, you could go to court and have the judge decide.
When parents cannot agree on a major decision, they’ll need someone to help them.
Let’s say they can’t agree on the medication the child takes, then they will say, for example, “Since we’re stuck on that, the doctor has a final say.” Or if the parents can’t agree on which school to send their child to, they might say, “Since we’re stuck on what school, this person has a final say.”
However, that will be agreed upon after they explore different avenues for getting unstuck.
5. So what does custody mean in legal terms?
Custody just means decision-making.
For what decision-making means, I would say look at the Children’s Law Reform Act, Section 18, Subsection 1.
There’s a section called ‘Decision Making Responsibility,’ and that’s essentially what it means. What decisions are included?
“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,
- (a) health,
- (b) education,
- (c) culture, language, religion and spirituality, and
- (d) significant extra-curricular activities; (“responsabilité décisionnelle”)
That’s what decision-making means. It is defined in the legislation and is a legal concept.
6. How is access different than custody rights?
Access is simply seeing your children, spending time with them physically or virtually (such as through telephone or video calls), which constitutes a form of parenting time.
- Access is spending time with your children
- Custody is making decisions about your children
7. Can I move with my child if I have custody?
Can I move my child if I have custody (decision-making)? It depends on what kind of custody you have. Custody is an old term that simply means you have decision-making. But this isn’t the same as mobility.
Mobility will be in the agreement, and the agreement will specify that you have the right to move within a certain distance from the child’s other parent.
Alternatively, it may not even state that, and in that case, you will need to consult with the other parent and obtain their permission or consent to move. The reason for this is that you cannot prevent their parenting time, their access.
If you move far away and the other parent can’t see the children anymore, then you have negatively impacted their quality time with their child. So, no, you can’t just pick up and move unless you have a court order that allows you to do so.
Can I move with my child? If we’re talking about moving within the city, this is different from relocating to another country. In this case, we would need a provision known as the Mobility Clause. A Mobility Clause will specify that if you want to move, you have to give the other person 60-day notice of your intention to move, and then they have enough time to bring a court application to prevent you from moving.
Of course, it depends on whether you’re moving 15 minutes away or a considerable distance. This is also outlined in the legislation, specifically in the Children’s Law Reform Act, Section 39, Subsection 3.
39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.
8. How does a judge make a decision?
And I said the test is called Best Interests of the Child, as cited in the Children’s Law Reform Act.
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
For the factors considered, refer to the link above, specifically subsections 1 to 7.
It addresses many factors, including:
- 11 factors related to the circumstances of a child
- 8 factors relating to family violence
- past conduct
- allocation of parenting time
9. What’s the difference between sole and joint custody?
- Sole decision-making (also known as sole custody) means that you are the only parent who makes decisions regarding the four areas we previously discussed: health, religion, education, and extracurricular activities.
- Joint decision-making (also known as joint custody) means sharing decisions with the other person, making all major decisions about the child’s life together.
And this is a serious matter. For example, health decisions can involve procedures such as blood transfusions, COVID vaccines, or other medical treatments. If you have sole decision-making authority, you can literally affect your child’s survival based on the decisions you make.
And the other person cannot say anything.
For example, a father enrolls the children in a private school prior to obtaining the mother’s consent. In that situation, he would be responsible for covering all of the expenses. If they had joint decision-making, he would not be able to do that.
10. Can grandparents get access rights?
Yes, that’s a good question. The legislation was modified, and a full section on grandparents’ rights has been added. Yes, they can go to court and request to see their grandchildren.
It’ll involve a third party in the proceedings, along with the father, the mother, and the grandparents.
The grandparents don’t have an automatic right; they must go to court to obtain the right to see their grandchildren.
Parenting order, application by non-parent
(2) Any person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child. 2020, c. 25, Sched. 1, s. 2.
Section 21.3 of the Children’s Law Reform Act grants grandparents the right to petition the court for contact and time with their grandchild. But everybody who does that has to do a police check.
For a parenting order regarding decision-making for a child, the non-parent will need to file a recent police record check.
And this is usually for step-parents, as well as grandparents.
Yes, grandparents can have access to the children, but they must go through the court if the parents do not agree to give them that access.
And the test is always what’s in the child’s best interest?
11. Can grandparents get decision-making rights (custody)?
Grandparents can actually take away decision-making rights from the biological parents. They can take the case to court and try to claim the right to have the child live with them full-time.
So they can not only have access, but they can also have decision-making authority, parenting time, and everything else.
As a grandparent, they could go beyond access and get a final order to have a child with them for life.
In these cases, the grandparents have their own lawyer, the mother has their own lawyer, and then the father has his own lawyer.
I’m noticing more often that older people are initiating court cases to claim decision-making authority for their grandchild.
And if it’s in the child’s best interest for the grandparents to have the child, that’s what happens.
12. What About Decision-Making Rights Between Dating Couples?
What happens in cases where a boyfriend and girlfriend are dating and then break up?
The boyfriend can sue the girlfriend, and he can take the children from her, even though he’s not even related to those children.
Because the test is only what’s in the child’s best interest, that’s the only test. So even a non-biological person can literally take away your children from you if they’re a better parent for that child.
Sometimes it is in the child’s best interest to reside with third parties and not their biological parents.
13. Decision-Making Rights for Aboriginal People
Then there’s another issue, Aboriginal people’s rights. How do courts decide what’s in the best interest?
If a child is Aboriginal, then the child’s best interest is to be with a parent who can ensure the child’s culture. This is respected in the legislation. If the case involves an Aboriginal child, that’s a huge factor. The courts don’t want to take away Aboriginal children from their community.
14. Other Factors
Other factors and situations affecting decision-making and parenting time (child custody and access) include Aboriginal people, adoption, foster care, and child protection. Child protection is when the parents are not fit parents, and the Children’s Aid Society goes in and literally removes the child from their home and finds another relative. If they can’t find a relative, the child is put in foster care.
Foster care and child protection are areas of family law that I don’t deal with.
Next Steps
Can you use help with child custody and decision making rights in your family? Reach out to Angela Daniels, an Ontario family law lawyer with 18 years of experience.
