Who Decides Schooling, Religion and Health Care After Separation in Ontario?

After separation, parents often disagree about big questions: which school, whether to vaccinate, or how to raise the child in a faith. It helps to know who has the right to decide.

This article explains the terms used in Ontario, how responsibility can be divided, and how to move forward when you cannot agree.

The terms have changed

As of March 1, 2021, the Divorce Act no longer uses the terms custody or access. Decision-making responsibility replaced custody, and parenting time replaced access. Ontario's guidance uses the same terms for all parents.

Decision-making responsibility means the responsibility for making significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extracurricular activities.

If you were never married or are not divorcing, you cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act. The provincial rules should be confirmed with a lawyer.

Joint, sole or divided

Decision-making responsibility, or any aspect of it, may be allocated to either spouse, to both, to a non-spouse parent or person standing in the place of a parent, or to any combination of them.

Under the Divorce Act, the court looks only at the child's best interests, with primary consideration to safety, security and well-being. If you were never married or are not divorcing, a different statute applies, so it is worth confirming with a lawyer how the test works for you. Factors include each person's ability and willingness to communicate and cooperate, and the child's views, given due weight by age and maturity.

Other factors the court may weigh include the child's needs given their age and stage of development, including the need for stability, the history of care, each parent's willingness to support the child's relationship with the other parent, any family violence, and any relevant civil or criminal proceedings. Past conduct, such as a mental health history or past substance use, is not considered unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact.

Day-to-day decisions and information

Unless the court orders otherwise, the person exercising parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. That usually covers things like meals and bedtime, not the significant decisions listed above.

Unless the court orders otherwise, a person with parenting time or decision-making responsibility may request information about the child's well-being, including health and education information.

A parenting order can allocate parenting time and decision-making responsibility, set requirements for communication between the parties, and provide for any other matter the court considers appropriate. It may be made for a definite or indefinite period, or until a specified event, and may impose any terms, conditions or restrictions the court considers appropriate. A person subject to a parenting order must comply with it until it is no longer in effect. If an order is not followed without good reason, the court can take action against the person who did not comply, including a fine or jail.

When you disagree

Whether a parent can decide on something like vaccination or a school change depends on what your order or agreement says. Putting your plan in a separation agreement or court order makes it easier to enforce than an informal plan. Ways to resolve a dispute include:

• Mediation: free family mediation is available at Ontario courthouses on the day you are in court, and off-site mediation is on a sliding scale.
• Parenting coordination for parents with a history of serious conflict who already have an order or agreement; it is a private, paid service.
• Family arbitration, which requires independent legal advice and a certificate of ILA for both people before it starts. Faith-based awards are not valid family arbitration awards under Ontario law.
• A court motion or application, where the judge decides based on best interests.

Under the Divorce Act, before varying a parenting order the court must be satisfied that there has been a change in the circumstances of the child since the order was made. Relocation of a child is deemed to be a change in circumstances, but a relocation the court has already prohibited does not count as a change by itself. If your order was made under the Children's Law Reform Act, it is worth confirming the test with a lawyer.

If you and the other parent reach agreement during a case, you can ask a judge to make an order on consent. If you agree at a case conference, the judge may have you sign Minutes of Settlement and may then make an order based on them. Parents can update an agreement by agreeing to the change, but a court order can only be changed by a new decision from the court.

To change a final parenting order by agreement, both parties sign Form 15C in front of witnesses and file it with Form 14B and a typed Form 25 draft order. If the other party does not agree, a motion to change on Form 15 must be served by special service, and the other party has 30 calendar days to respond, or 60 calendar days if they were served outside Canada or the United States.

What to do next

• Read your order or agreement and note who decides which areas.
• Write down the decision in dispute and what each parent proposes.
• Share information about the child and keep communication civil.
• Consider mediation before going to court.
• Talk to a lawyer before changing a school, medical plan or religious practice on your own.

Frequently asked questions