Unmarried Parents and Parenting Rights in Ontario

Many parents were never married, or lived together without marrying. If you are one of them, you may worry that your rights are weaker than a married parent's, especially if you are a father whose name is not on the birth registration.

In Ontario, marital status does not decide whether you are a parent or whether you can have a role in your child's life. What matters is whether you are legally a parent and what is best for the child. Here is how that generally works.

Do unmarried parents have equal rights?

Under the Children's Law Reform Act, a child's parents have an equal right to decision-making responsibility for the child. This applies whether or not the parents were ever married.

There is an exception once parents separate. If the 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 suspended until a separation agreement or court order says otherwise. Their entitlement to parenting time is not suspended.

Parenting time includes the right to visit with and be visited by the child, and the same right as a parent to make inquiries and receive information about the child's well-being. If you are in this position, getting an agreement or order in place can avoid your decision-making role staying suspended.

Who counts as a legal parent?

The birth parent is a parent of the child and must be recognized in law as one, with surrogacy dealt with as an exception. For others, the law uses presumptions. A person is presumed to be the parent of a child conceived through sexual intercourse in listed cases. These include:

• being the birth parent's spouse at the birth
• living in a conjugal relationship with the birth parent before the birth
• having certified the child's birth as a parent under the Vital Statistics Act

The presumption can be rebutted on a balance of probabilities. If more than one person would be presumed to be the parent, no presumption of parentage arises.

Fathers and parents not on the birth certificate

Not being named on the birth certificate does not end the question. Any person with an interest may apply to court for a declaration that a person is, or is not, a parent of the child. This does not apply to adopted children.

Whether a declaration is possible, and what evidence a court would want, depends on your facts. If parentage is in doubt, it is worth sorting that out before or alongside a parenting application, and a lawyer can explain the options.

Applying to court for a parenting order

A parent may apply to court for a parenting order covering decision-making responsibility and parenting time. The application must include an affidavit with your proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings. Ontario's guidance says parents applying file Form 8 and Form 35.1 (Part A).

The court's primary consideration is 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, subject to the child's safety. The best-interests factors the court considers include the child's needs given age and stage of development, the child's relationships, the history of care and each parent's ability to care.

If you and the other parent agree, you can record it in a separation agreement. Separated cohabitants may agree on decision-making responsibility and parenting time. The agreement is unenforceable unless it is in writing, signed by the parties and witnessed. Even then, a court may disregard a provision on parenting if that is in the child's best interests.

What to do next

• Gather the child's birth registration and any proof of your relationship with the birth parent.
• Write down who has cared for the child, and when.
• Keep records of what you have contributed to the child's care and upbringing.
• Draft a realistic plan for the child's schedule and decisions.
• Speak with a family lawyer before signing any agreement or filing an application.

Frequently asked questions