Parenting Time for Babies and Toddlers After Separation in Ontario

Separating when your child is a baby or toddler raises questions that older-child cases do not. Can the other parent have overnights? What happens to breastfeeding? Should time start in short visits and grow? Many parents expect a rule based on age, and they are often surprised to learn there isn't one.

This article explains how parenting time for very young children is generally approached in Ontario, what the law does say, and how to build a plan that can change as your child grows. Every family is different, so a lawyer can confirm how this applies to you.

Which law applies and what the words mean

Two statutes can apply. The federal Divorce Act governs parenting between married spouses who are divorcing. Ontario's Children's Law Reform Act (CLRA) applies to unmarried parents and to married parents who are not divorcing. The two have parallel sections, with the Ontario list of factors matching the federal one.

Parents have an equal right to decision-making responsibility whether or not they were ever married. The exception is when 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 then suspended until a separation agreement or court order says otherwise, although their entitlement to parenting time is not suspended. Parenting time includes the right to visit with the child and the same right as a parent to ask about and receive information on the child's well-being. Older orders and agreements may still use the words custody and access, which are the earlier terms for these ideas.

There is no set schedule by age

Nothing in the statutes fixes when a baby can start overnights or how long a toddler can be away from the other parent. Courts apply the general best-interests factors, and the first one is the child's needs given age and stage of development. That list is not exhaustive, so a court may consider other factors too.

The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. Alongside that, a child should have as much time with each parent as is consistent with the child's best interests. The right amount depends on the individual child's circumstances and is subject to the child's safety.

In practice, this means the same question is asked of every family: what does this particular child need at this age, and how can both parents be part of the child's life safely? Be wary of anyone who presents a fixed age-based schedule as the law.

Overnights, breastfeeding and gradual schedules

There is no statutory rule on overnights for infants or on breastfeeding. These issues are decided on the facts, using the best-interests factors, including the child's needs at their stage of development and each parent's history of care and ability to care for the child.

Justice Canada's parenting guide notes that a schedule suited to a teenager is unlikely to suit an infant or toddler. That is why many parents agree on a schedule that changes in steps, for example shorter, more frequent visits at first. Whether that fits your child depends on things a lawyer or other professional can talk through with you, such as routines, feeding, health and each parent's involvement so far.

• Who has done the day-to-day care so far, and how the child is used to being cared for.
• Each parent's ability to care for the child and their care plans.
• How the parents will communicate and cooperate about feeding, sleep and health.
• Any safety concern, which comes first.

If the parents cannot agree and the case reaches court, the court may appoint a qualified professional to assess the child's needs and each party's ability to meet them.

Putting a plan in writing

Separated cohabitants may agree on decision-making responsibility and parenting time in a separation agreement. 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 parenting time or decision-making if that is in the child's best interests, so an agreed plan never binds the court on these issues.

Justice Canada suggests a plan cover decision-making, a schedule including holidays, transportation, vacations outside the province or country, passport applications and consent letters for travel. For a young child, you may also want to write down how the schedule will be reviewed as the child grows. Justice Canada advises each parent to show the draft plan to their own legal adviser before signing.

If a plan is included in a Divorce Act order, it is legally binding. In a court parenting order, the court must include a written parenting plan the parties have agreed on, though it may change the plan if that is in the child's best interests.

During their parenting time, a parent has exclusive authority over day-to-day decisions unless the court orders otherwise.

What to do next

• Write down your child's current routine: feeding, naps, bedtime, health needs and who does what.
• Keep a simple record of the care each parent has provided and of any safety concerns.
• Think about a stepped schedule and when you would review it.
• Keep communication calm and child-focused; parties must protect the child from conflict arising from the case as far as they are able.
• Talk to a family lawyer before signing any agreement or filing in court.

Where it is appropriate, parties must also try to resolve matters through a family dispute resolution process. If there are safety concerns, a court can direct supervised parenting time, but the supervisor must first consent.

Frequently asked questions