Do Both Parents Have Equal Rights Without a Court Order in Manitoba?

You and the other parent may have separated without ever going to court. Maybe nothing is written down, and you are not sure who can make decisions about school, medical care or travel. Many parents are in this spot, and the answer depends partly on whether you ever lived together.

This article explains the default position in Manitoba when there is no parenting order, the main exception, what decision-making responsibility covers, and who can ask a court to change things. It is general information, not advice on your situation.

This article covers the law of Manitoba.

The default rule: shared rights without an order

Under section 36 of The Family Law Act, when there is no parenting order, parents have joint rights to exercise parental responsibilities for their children. In plain words, neither parent automatically outranks the other just because of separation.

The Act replaced the older ideas of custody and access with parenting orders that set parenting time and decision-making responsibility. So if you hear someone say they have "custody" without an order, that wording is outdated. What matters now is who has parenting time and who makes significant decisions.

The main exception: parents who never lived together

There is an important exception. Where the parents never lived together after the child's birth, the parent with whom the child resides is the only parent with decision-making responsibility, unless a parenting order says otherwise.

This means the default is not the same for every family. A couple who lived together with their baby and then separated starts from a different place than parents who never shared a home after the birth. If you are unsure which describes you, a lawyer can confirm how the rule applies to your facts.

Decision-making responsibility and day-to-day decisions

Decision-making responsibility means responsibility for making significant decisions about a child's well-being, covering health, education, culture and religion, and significant extra-curricular activities.

Day-to-day decisions are different. The person who has parenting time has exclusive authority over day-to-day decisions during that time. 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.

Who can apply for a parenting order, and what it can do

An application for a parenting order may be made by either or both parents, or by a person other than a parent who stands in the place of a parent. A non-parent needs leave of the court and must give notice to the parents.

A parenting order may allocate parenting time and decision-making responsibility, or any of its elements, to either parent, to both parents, or to others as the Act permits. It may be for a definite or indefinite period and may authorize or prohibit relocation of the child.

• Married spouses who claim a divorce can seek a parenting order under the federal Divorce Act.
• Unmarried parents rely on The Family Law Act, which is also the source of provincial claims.
• Which statute applies depends on whether a divorce is claimed, so ask a lawyer if you are unsure.

How the court decides, and what to do next

In making a parenting order, the court must consider only the best interests of the child and give primary consideration to the child's physical, emotional and psychological safety, security and well-being. A child should have as much time with each parent as is consistent with the child's best interests.

• Write down where the child has lived since birth and whether you and the other parent ever lived together.
• Gather any messages or agreements about schedules and decisions.
• Think about whether a written agreement or a parenting plan could settle things without court.
• Note any safety concerns, and raise them early with a lawyer.
• Get legal advice before applying, especially if you are not a parent.

Frequently asked questions