Overnight Parenting Time for Toddlers and Preschoolers in Ontario

When a child is very young, parents often disagree about overnights. One parent worries about a toddler sleeping away from their main caregiver. The other parent worries about being pushed to the margins of their child's life.

This article explains the general approach Ontario courts take and how parents can build up to overnights in stages. It does not set an age at which overnights must or must not start, because that depends on the child and the family. It is general information, not legal advice.

The legal test for young children

If a divorce has started or a Divorce Act parenting order exists, the Divorce Act applies. Under it, only the child's best interests count when making a parenting or contact order, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. If no divorce proceeding has started, parents use the Children's Law Reform Act and a parenting order under it.

Under the Divorce Act, the court also gives effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests. This maximum-contact principle is always subject to best interests. How it applies to a toddler or preschooler, and whether it works the same way under the Children's Law Reform Act, depends on your situation, so it is worth confirming with a lawyer.

Facts that often come up

The details of your family matter a great deal. These are the kinds of questions parents and lawyers tend to look at:

• Who has been the child's main caregiver so far, and how involved the other parent has been.
• The child's health, sleep, feeding and any special needs.
• The other parent's home: where the child would sleep and who else is present.
• How well the parents communicate, since joint decision-making needs parents who can cooperate and communicate.
• Any history of family violence, which is a listed factor for the court.

If family violence is a concern, the Divorce Act's definition is broad and includes violent or threatening conduct, coercive and controlling behaviour, and conduct that causes a family member to fear for their safety.

Phasing in overnights

A court can make parenting orders, including interim orders, and can set schedules, conditions and supervision. A staged plan is one way to respond to concerns about a young child while still protecting the relationship with both parents. The table below is only an illustration of how stages might look, not a standard or recommended schedule.

The right pace depends on your child. A lawyer can help you decide what timing and review points to propose.

Day-to-day decisions and sharing information

Unless a court orders otherwise, the parent with parenting time has exclusive authority for day-to-day decisions during that time. Decision-making on significant matters such as health, education and religion is separate and can be sole or joint. A person with parenting time or decision-making responsibility can ask others holding information, such as health and education providers, about the child's well-being, unless the court orders otherwise.

For a young child, it helps to agree on practical points in writing, such as bedtime routines, feeding, medication and how handovers will work.

Agreements and orders

Parents who agree can set out a parenting plan. A plan can be informal, part of a separation agreement, or part of a court order, but an informal plan can be hard to enforce. Under the Divorce Act, where parties agree a parenting plan, the court must include it in the order unless it is not in the child's best interests, in which case the court may modify it. Whether the same applies to parents using the Children's Law Reform Act depends on your situation, so it is worth confirming with a lawyer.

If you cannot agree, either parent can apply for a parenting order, and the judge must act in the child's best interests and consider family violence. A motion without notice may be allowed where notice is unnecessary or not reasonably possible, or where there is an immediate danger that a child will be removed from Ontario or to someone's health or safety and delay would probably have serious consequences. After a without-notice order, you usually must return to court within 14 days so the other party can respond.

What to do next

• Write down your child's daily routine, including sleep, meals, health needs and who does what.
• Keep a log of the parenting time that has taken place and how the child has responded.
• Draft a proposed staged plan with review points and share it calmly with the other parent.
• Keep communication child-focused and in writing where possible.
• Get advice from a family lawyer before agreeing to or refusing overnights, especially if safety is a concern.

Frequently asked questions