Custody and Parenting Time After a Common-Law Breakup in Ontario

When common-law parents separate, the first worry is often the children. Who makes the big decisions? Where will they live? How much time will each of you get? Many people still use the word custody, but Ontario now describes these questions in different terms.

This article explains the basics in plain language. It covers the words used, what a judge looks at, how a parenting plan fits in, and how child support and tax benefits connect. Your facts are specific to you, so use this as a map and not as a substitute for advice.

Why marriage does not decide parenting rights

Only legally married couples can divorce, and the federal Divorce Act covers only married couples. Provincial and territorial laws cover unmarried couples who separate, including child support, spousal support and custody. So if you lived together without marrying, your parenting issues are handled under Ontario's rules and not through a divorce.

In practice, this means the questions a court asks about the children are the same kind of questions whether or not you were married. What differs between married and unmarried couples is mostly property and some other areas, which are covered in other articles.

The words used: decision-making responsibility and parenting time

Ontario describes decision-making responsibility as the right to make significant decisions about a child's health, education, religion and other important matters. It may be sole, meaning one parent decides, or joint, meaning parents decide together. Parenting time is the time a child spends in a parent's care, and a parent generally has it unless a court finds otherwise.

These are separate questions. A parent can have a large amount of parenting time and still share decision-making, and the arrangement can be tailored to the child.

What a judge must consider

If you cannot agree and the matter goes to court, the judge must make a parenting order in the child's best interests, and must consider family violence and the child's current living arrangements.

In an Ontario family court, a general application (Form 8) is used when making claims other than a divorce. Parenting time, decision-making responsibility, child support and dividing property are among the issues a judge can be asked to decide.

Putting your plan in writing

Parents can write a parenting plan informally, in a separation agreement, or in a court order. An informal plan can be difficult to enforce. If trust is high, an informal arrangement may work for a while, but a written agreement or order gives more certainty if things change.

A cohabitation agreement can set out property rights, but it cannot say who has decision-making responsibility or parenting time for the children. How this applies depends on your situation, so it is worth confirming with a lawyer.

Child support and tax benefits

Child support is based on the number of children, the province where the paying parent lives, and the paying parent's annual income. The updated federal tables apply to all Ontario child support matters starting October 1, 2025. Payments from that date use the 2025 tables, and earlier amounts use the 2017 tables.

The paying parent must give the other parent proof of income every year (last tax return and notice of assessment or reassessment), within 30 days of the original order or agreement date unless the parents agree otherwise. Special expenses such as orthodontics, prescriptions, sports fees and child care are shared on disclosure of status and amount.

Time with the child also affects the Canada Child Benefit. CRA treats a child living with you 40% to 60% of the time as shared custody, and each parent generally gets 50% of the amount. If the child lives with you less than 40% of the time, you are not eligible for child and family benefits for that child. Each parent must immediately tell CRA of a new custody situation.

• Child support is not the same as parenting time, and each is dealt with on its own terms.
• Income proof is shared each year, so keep your tax documents organized.
• A change in the schedule can affect benefits, so tell CRA promptly.

What to do next

• Write down the current routine: where the child sleeps, who handles school, medical care and activities.
• Gather proof of income, such as your last tax return and notice of assessment.
• Keep communication with the other parent calm and in writing where you can.
• Draft a parenting plan and consider having it put into a separation agreement or order, since an informal plan can be hard to enforce.
• If there is any family violence, raise it early, because a judge must consider it.
• Speak with a family lawyer before filing a Form 8 application or signing any agreement.

Frequently asked questions