Parenting Rights After Separation in Ontario Before Any Court Order

When parents separate, the first weeks often run on informal arrangements. The children stay mostly with one parent, the other visits when they can, and nobody has signed anything. It is natural to wonder what each of you is actually entitled to in the meantime.

This article explains where parents generally stand in Ontario before there is an agreement or a court order, how parentage is worked out for unmarried parents, and the usual ways to make an arrangement binding. Your own facts matter, so a lawyer can confirm how this applies to you.

Which law applies, and what the words mean

Which statute applies depends on marital status. The federal Divorce Act governs parenting between married spouses in a divorce. Ontario's Children's Law Reform Act (CLRA) applies to unmarried or common-law parents, and to married parents who are not divorcing. The two have parallel but separately numbered sections.

The terms "decision-making responsibility" and "parenting time" replaced "custody" and "access". Part of the Divorce Act's updated parenting rules, the family violence factors in s. 16(4), came into force on March 1, 2021. Older orders and agreements may still use the old words.

Where you stand before any order

Under CLRA s. 20(1), a child's parents have an equal right to decision-making responsibility for the child, whether or not they were ever married.

There is an important exception for separated parents. 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. Going along with the arrangement, even without saying so, can have this effect.

• Their entitlement to parenting time is not suspended.
• Parenting time includes the right to visit with and be visited by the child.
• It also includes the same right as a parent to make inquiries and receive information about the child's well-being.

Who counts as a parent if you were not married

The birth parent is a parent of the child and must be recognized in law as one, with surrogacy being a separate exception. For other parents of a child conceived through sexual intercourse, a person is presumed to be the parent in listed cases. These include 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.

If a parent is not on the birth certificate, any person with an interest may apply to court for a declaration that a person is, or is not, a parent of the child. This does not apply to adopted children.

Making the arrangement binding

There are two usual routes. The first is a separation agreement, where separated cohabitants may agree on decision-making responsibility and parenting time. It is unenforceable unless it is in writing, signed by the parties and witnessed. A court may still disregard any provision on a child's education, moral training, 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.

The second is a court application. A parent may apply 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. Parents file Form 8 and Form 35.1 (Part A). Under the CLRA, a person who is not a parent, such as a grandparent or stepparent, may also apply, and one seeking decision-making responsibility must also file a recent police records check and ask for a search of child-protection records. In a divorce 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.

Justice Canada advises each parent to show a draft parenting plan to their own legal adviser before signing.

Keeping the children out of it

Parties must protect the child from conflict arising from the case as far as they are able. Where appropriate, they must also try to resolve matters through a family dispute resolution process. Even before a case starts, this is a useful guide to how you handle the separation.

If a child is being kept from you: what to do next

Start by writing down dates, messages and what arrangements were in place, and get legal advice early. If you think your child is in danger or at risk of being taken out of the country, Ontario's guidance says to call the police right away.

No motion may normally be heard before a case conference on the substantive issues, but the court can make an exception where there is urgency or hardship. A motion may be made without notice in several cases, including when notice is unnecessary or not reasonably possible, when there is an immediate danger of a child's removal from Ontario, when there is an immediate danger to the health or safety of a child or the party, or when serving notice would probably have serious consequences. In the removal and danger cases, the delay of serving notice must also probably have serious consequences. Which situations count as urgent can also depend on the regional practice direction for your court location.

Where a court is satisfied a child is being unlawfully withheld, it may authorize the applicant to apprehend the child. It may also direct the police to locate, apprehend and deliver the child to the person named in the order. That order expires within six months unless a longer period is necessary.

Frequently asked questions