Father's Rights to Parenting Time in Ontario After Separation

If you have just separated, it is common for a father to worry that the mother will simply keep the children and he will be pushed to the edges. The law does not start from that position, but the details of your situation still matter a great deal.

This article explains where fathers stand in Ontario, how a court decides what is best for a child, and the practical routes to a parenting time schedule. It is general information, and a lawyer can tell you how it applies to your facts.

You start on equal legal footing

Under the Children's Law Reform Act (CLRA), a child's parents have an equal right to decision-making responsibility for the child, and this applies whether or not they were ever married. The law does not rank mothers above fathers.

There is one exception to know about. If the parents live apart and the child lives with one parent with the other's consent, implied consent or acquiescence, the other parent's right to exercise decision-making responsibility is suspended until a separation agreement or court order says otherwise. Your entitlement to parenting time is not suspended in that situation. This is why it is worth getting a written agreement or order in place rather than leaving things informal.

If you were never married and your name is not on the birth registration, being recognized as a parent can be the first step. A person is presumed to be the parent of a child conceived through sexual intercourse in listed cases, including being the birth parent's spouse at the birth, living in a conjugal relationship with the birth parent before the birth, or having certified the child's birth as a parent under the Vital Statistics Act. The presumption can be rebutted on a balance of probabilities. If more than one person would be presumed to be the parent, no presumption arises. Any person with an interest may apply to court for a declaration that a person is, or is not, a parent of the child.

Which law applies to you

The federal Divorce Act governs parenting between married spouses in a divorce. The CLRA applies to unmarried or common-law parents and to married parents who are not divorcing. The two statutes have parallel but separately numbered sections, and the old words custody and access have been replaced by decision-making responsibility and parenting time. Older orders and agreements may still use the old terms.

How a court decides: the best interests test

In parenting cases, the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. After that, the court looks at a list of factors. They include the child's needs given age and stage of development, the child's relationships, each parent's willingness to support the child's relationship with the other parent, the history of care, the child's views and preferences, care plans, each parent's ability to care, to communicate and to cooperate, family violence, and related proceedings. The list is not exhaustive, so a court may consider other factors while always giving priority to safety.

• A child should have as much time with each parent as is consistent with the child's best interests, and the right amount depends on the individual child and is subject to the child's safety.
• The court does not consider a person's past conduct unless it is relevant to their parenting time, decision-making responsibility or contact.
• The court must, where possible, take the child's views and preferences into account to the extent the child can express them.
• Willingness to support the child's bond with the other parent is a listed factor, and the statutes do not use the word alienation.

Getting a schedule: agreement or court

Separated cohabitants may agree in a separation agreement on decision-making responsibility and parenting time for their children. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. Even then, a court may disregard a provision on decision-making responsibility or parenting time if that is in the child's best interests, so an agreed plan never binds the court on these issues.

If you cannot agree, a parent may apply to court for a parenting order covering decision-making responsibility and parenting time. The application must include an affidavit with your proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings. Ontario's guidance says parents applying file Form 8 and Form 35.1 (Part A). These two rules fit together: where the parties have agreed on a written parenting plan, the court must include it in its parenting order, but the court is not bound by it and may change the plan if that is in the child's best interests.

Parties must also protect the child from conflict arising from the case as far as they are able, and where appropriate try to resolve matters through a family dispute resolution process.

If you are being shut out or safety is a concern

Ontario's guidance says you can be fined or jailed for not following a court order on decision-making responsibility, parenting time or contact. If an order is not being obeyed, the court may make any order it considers necessary for a just result, such as costs or a contempt order. Under the Family Law Rules, no motion may normally be heard before a case conference on the substantive issues, but there is an exception where the court finds a situation of urgency or hardship, or that a case conference is not required for some other reason in the interest of justice.

Safety concerns work in both directions. Family violence is conduct that is violent or threatening, forms a pattern of coercive and controlling behaviour, or causes fear for safety, and it need not be a criminal offence. Where there are safety concerns, supervised parenting time can be arranged, with a supervisor who is an agreed person, a paid professional, or staff at a Supervised Access Centre.

What to do next

• Confirm whether you are legally recognized as a parent, and deal with that first if you are not.
• Write down the child's routines: school, health care, who has done what.
• Draft a realistic proposed schedule that puts the child's needs first.
• Keep communication with the other parent calm and in writing where you can.
• Do not wait for a long informal arrangement to become the new normal.
• Speak with a family lawyer before signing any agreement or filing court forms.

Frequently asked questions