- Which law applies depends on marital status: the Children's Law Reform Act for unmarried parents and married parents who are not divorcing, and the Divorce Act for spouses who are divorcing.
- Parents file Form 8 and Form 35.1 (Part A), while non-parents file Form 35.1 Parts A and B, and Form 35.1A is needed only if child protection has been involved.
- Non-parents seeking decision-making responsibility must also file a recent police records check and ask for a search of child-protection records.
If you are looking for how to apply for "custody" in Ontario, the process is now called applying for a parenting order. It deals with who makes major decisions for a child and how time with the child is shared.
This article walks through who can apply, which law applies to you, which forms to file, and the extra steps that apply to people who are not the child's parents. It explains how the process generally works and is not a substitute for advice on your own situation.
Old words, new words: custody and access
The terms "decision-making responsibility" and "parenting time" replaced "custody" and "access". Older orders and agreements may still use the old words, but new applications use the new ones.
Decision-making responsibility covers significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extra-curricular activities. Parenting time includes the right to visit with and be visited by the child, and the same right as a parent to make inquiries and receive information about the child's well-being, and during that time the person has exclusive authority over day-to-day decisions unless the court orders otherwise.
Which law applies to you
The statute depends on marital status. The Children's Law Reform Act (CLRA) applies to unmarried or common-law parents and to married parents who are not divorcing. The federal Divorce Act governs parenting between married spouses in a divorce.
The two laws have parallel but separately numbered sections, so the section numbers you read about may differ depending on which one applies to you. Both make the child's physical, emotional and psychological safety, security and well-being the court's primary consideration.
Who can apply
- A parent may apply under the CLRA for a parenting order covering decision-making responsibility and parenting time.
- A person who is not a parent, such as a grandparent or stepparent, may apply under the CLRA for a parenting order on decision-making responsibility or for a contact order.
- Under the Divorce Act, either or both spouses may apply, as may a non-spouse who is a parent, stands in the place of a parent, or intends to stand in the place of a parent.
- Under the Divorce Act, a non-spouse such as a stepparent who is not the married spouse needs leave of the court before applying for a parenting order.
A non-spouse who wants a contact order under the Divorce Act also needs the court's leave.
What you file
Every CLRA application must include an affidavit. It sets out your proposed plan for the child's care and upbringing and gives details of any earlier family or criminal proceedings.
| Who is applying | Forms to file |
|---|---|
| Parent | Form 8 and Form 35.1 (Part A) |
| Non-parent (for example a grandparent or stepparent) | Form 35.1 Parts A and B |
| Anyone, if a party or the children have been involved in child protection matters | Form 35.1A as well |
Form 35.1A is needed only where a party or the children have been involved in child protection matters.
Extra steps for non-parents
A non-parent seeking decision-making responsibility must also file a recent police records check and ask for a search of child-protection records.
- Serve the police records check on the other parties and file it with the court within 10 days of receiving it.
- An existing check can be used if it was completed within 60 days before the application started.
- The Children's Aid Society returns its records report to the court within 30 days.
What the court and you must do, and what to do next
The court has a duty to check whether restraining orders, child protection matters or criminal matters involving a party are pending or in effect, and it may make inquiries of the parties. The parties must protect the child from conflict arising from the case as far as they are able, and where appropriate must try to resolve matters through a family dispute resolution process.
If you and the other parent agree on a written parenting plan, the court must include it in the parenting order, although it may change the plan if that is in the child's best interests.
- Work out whether the CLRA or the Divorce Act applies to you.
- Decide whether you are applying as a parent or a non-parent, and gather the matching forms.
- Write down your proposed plan for the child's care and upbringing, and list any earlier family or criminal proceedings.
- If you are a non-parent, arrange a police records check and request the child-protection records search.
- Consider whether the two of you can agree on a parenting plan.
- Speak with a family lawyer before filing, especially if safety, child protection or leave of the court is involved.
Frequently asked questions
Is there still an application for custody in Ontario?
The words "custody" and "access" were replaced by "decision-making responsibility" and "parenting time". You now apply for a parenting order that covers them. Older orders and agreements may still use the old terms.
Can a grandparent or stepparent apply?
Yes. Under the CLRA, a non-parent may apply for a parenting order on decision-making responsibility or for a contact order. Under the Divorce Act, a non-spouse such as a stepparent needs leave of the court before applying for a parenting order.
Do I always need Form 35.1A?
No. Form 35.1A is needed only if a party or the children have been involved in child protection matters. Parents otherwise file Form 8 and Form 35.1 (Part A).
What if the other parent and I already agree on a plan?
The court must include a written parenting plan the parties have agreed on in its parenting order. It may change the plan if that is in the child's best interests. A lawyer can help you check the plan before you sign.
Sources
- Children's Law Reform Act, s. 20(5) (e-Laws) — Ontario e-Laws
- Ontario.ca – Parenting time, decision-making responsibility and contact — ontario.ca
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.1(1) — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
Start a file online — flat, published fees, reviewed by a licensed lawyer before a dollar is owed.