Parenting Time and Decision-Making for Unmarried Parents in Ontario

If you and your partner were never married and you are separating, you may be searching for the word custody. Many people still use it, but the terms in Ontario's Family Law Act are decision-making responsibility and parenting time.

This article explains how being unmarried affects parenting issues, what a cohabitation agreement can and cannot say about children, and how child support fits in. How a particular family's schedule is set depends on the facts, so a lawyer can confirm what applies to you.

Being unmarried does not change your role as a parent

Property rules and parenting rules work very differently for common-law couples. Property rules for married spouses do not apply to unmarried partners. A parent's responsibility to a child is different: every parent must support their child to the extent they are able, whether or not the parents were ever married.

Whether someone is a parent of a child is set out in s. 4 of the Children's Law Reform Act. If parentage is disputed or unclear, get legal advice early.

What the words mean

• Decision-making responsibility: who makes major decisions about the child, such as education, health and religion.
• Parenting time: the time the child spends in each parent's care and the schedule for it.
• Custody: an older word still used in everyday speech, often covering both ideas.

These are separate questions. Parents can agree on a schedule without agreeing on who decides everything, and the reverse is also true.

What a cohabitation agreement can and cannot cover

Two unmarried people who are cohabiting, or intend to, may make a cohabitation agreement about their rights and obligations, including property and support. To be enforceable, it must be in writing, signed by the parties and witnessed.

For children, the limits matter. An agreement may deal with the right to direct the children's education and moral training, but it cannot deal with decision-making responsibility or parenting time.

Even where an agreement does cover education or moral training, a court deciding those issues, or decision-making responsibility or parenting time, may disregard a provision of a domestic contract on that matter if that is in the child's best interests. In short, a signed agreement does not lock in how children are looked after.

Child support and spousal support are separate questions

Every parent must support their child to the extent they are able, whether or not the parents were ever married, and a cohabitation agreement cannot deal with parenting time for the children. A court may disregard a child support provision in a domestic contract if it is unreasonable having regard to the child support guidelines and any other child support provision in the contract.

Spousal support is a different claim. For support, unmarried partners can be spouses if they cohabited continuously for not less than three years. They are also spouses, however long they lived together, if they cohabited in a relationship of some permanence and are the parents of a child as set out in s. 4 of the Children's Law Reform Act.

What to do next

• Write down the current routine: who handles school, medical care, activities and daily care.
• Keep records of communication about the children, and keep them civil.
• Collect any cohabitation agreement or other domestic contract and check what it says about children.
• Gather income information, since child support is tied to what each parent is able to pay.
• Speak with a family lawyer before signing anything about parenting arrangements.

Frequently asked questions