Parenting Time vs Decision-Making Responsibility in Manitoba

If you are separating, you may have heard the words "custody" and "access" and then run into "parenting time" and "decision-making responsibility" in court papers. The newer terms are not just a change of labels. They describe two different parts of how a child's life is shared between the adults who care for them.

This article explains what each part means, how a court can divide them, which law applies to your family, and where a parenting plan fits in. It is general information, and a lawyer can tell you how it applies to your situation.

This article covers the law of Manitoba.

The two parts of a parenting order

Manitoba's Family Law Act replaced the concepts of custody and access with parenting orders that set parenting time and decision-making responsibility. If you see "custody" or "access" in an older order or an older website, that is the background language. Current Manitoba court rules use "parenting order", "parenting time", "decision-making responsibility" and "contact".

Put simply, parenting time is about when the child is with whom. Decision-making responsibility is about who decides the bigger questions in the child's life.

What parenting time means

Parenting time is the time a child spends in the care of a person, and the child does not need to be physically with that person for the whole period. A court can allocate parenting time by a schedule. Under the Family Law Act, parenting time may be allocated by schedule unless a schedule is unnecessary.

The guiding principle is that a child should have as much time with each parent as is consistent with the child's best interests. The Divorce Act states the same idea for spouses. This is not a promise of equal time. It means the court looks at what fits the child, not at what either adult would prefer.

The person who has parenting time has exclusive authority over day-to-day decisions during that time. Under the Divorce Act, this applies unless the court orders otherwise. Everyday matters such as meals, bedtime and routine activities are generally handled by whoever the child is with.

What decision-making responsibility covers

Decision-making responsibility is responsibility for making significant decisions about a child's well-being. The law lists these areas:

• Health
• Education
• Culture and religion
• Significant extra-curricular activities

A court can allocate decision-making responsibility, or any of its elements, to either parent, to both parents, or to others as the Act permits. In practice, that means a court can give all of it to one parent, share it between both, or divide the parts. For example, the order could say that one parent decides on education while both decide together on health. Which arrangement suits a family depends on the facts, including how well the parents can communicate and cooperate.

A parenting order can last for a definite or indefinite period, and it can authorize or prohibit relocation of the child.

Which law applies, and what happens without an order

The Divorce Act applies to married spouses, and the Family Law Act governs parenting for unmarried parents. Married parents can also be covered by the Family Law Act in provincial claims. Which statute applies depends on whether a divorce is claimed. Under the Divorce Act, a parenting order is available on application by a spouse or certain other persons. Under the Family Law Act, either or both parents, or a person standing in the place of a parent, may apply, but a non-parent needs leave of the court and must give notice to the parents.

The court forms differ too. Form 70A (Petition for Divorce) is used for relief under the Divorce Act, and Form 70B (Petition) is used for provincial relief such as parenting arrangements.

Parenting plans and how courts decide

A parenting plan covers when and how much time each parent spends with the child, how decisions are made and how information is shared. If parents agree, the court must include a parenting plan they submit in the parenting order unless it is not in the child's best interests, in which case the court may modify it. Where parents do not agree, a plan is required to proceed in Manitoba court, and each parent must submit their own.

When a court decides, it considers only the child's best interests. It gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Other factors include the child's needs and relationships, each person's ability to care for the child, and family violence and its impact. The child's views count, with due weight given to age and maturity, but the statutes set no fixed age at which a child's choice decides the matter.

What to do next

• Write down the current routine: where the child lives, school, health providers and activities.
• Think about which decisions you can share and which cause conflict.
• Draft a parenting plan covering time, decisions and information sharing.
• Try family dispute resolution such as negotiation or mediation where appropriate.
• Note that a parenting order can be changed only if the child's circumstances have changed since the original order.
• Speak with a Manitoba family lawyer before you file, especially if safety is a concern or you plan to move.

Frequently asked questions