Who Has Custody of a Child Before There Is a Court Order in Ontario?

When parents separate, many people assume that whoever the child lives with "has custody." In reality, if no court order or written agreement exists, the situation is less tidy. You may be sharing care in practice, but nothing on paper says who decides what.

This article explains how the law generally treats that gap in Ontario, what the terms parenting time and decision-making responsibility mean, and the steps people commonly take to put something enforceable in place. It is general information, not advice on your situation.

The words have changed: parenting time and decision-making

Everyday speech still uses "custody" and "access," but the current law talks about decision-making responsibility and parenting time. Decision-making covers significant decisions such as health, education and religion, and it can be sole or joint. Parenting time includes time the child is at school or elsewhere, not only the hours spent in your home.

Which statute applies depends on your circumstances. If no divorce proceeding has started, the Children's Law Reform Act applies and a parent would need a parenting order under it. If a divorce has started or a Divorce Act parenting order exists, the Divorce Act applies.

What the law says when there is no order

Ontario's guidance says parents have the right to parenting time unless a court decides otherwise. That means a separation does not, by itself, give one parent the right to shut the other out.

The same guidance describes "de facto" decision-making. It exists when the child lives with you full-time, the spouses live separate and apart, and the other spouse accepts this arrangement. It is a description of what is happening, not a legal status. Legal decision-making responsibility exists only through a signed separation agreement or court order, and enforcing your rights is harder without a written arrangement.

Why an informal arrangement can leave you exposed

A plan can be informal, part of a separation agreement, or part of a court order. An informal plan between parents can be hard to enforce. If one parent stops following it, there may be nothing to point to.

Some practical points to keep in mind while there is no order:

• Ontario's government says that if a child has been abducted by a family member, you should call 911 or local police.
• You can apply to family court for the child's return, even if the child was taken out of Ontario, but you need a parenting order or agreement in place to enforce decision-making responsibility and parenting time.
• Taking a child under 14 can be a criminal offence even when there is no custody or parenting order, although no proceedings may start without the consent of the Attorney General or counsel instructed by them.
• Whether a particular situation amounts to abduction depends on the facts, so it is worth speaking with a lawyer before assuming either way.

If you cannot agree: applying for a parenting order

If parents cannot agree, either of them can apply for a parenting order. The judge must act in the child's best interests and consider family violence. Under the Divorce Act, only the child's best interests count, with primary consideration given to the child's physical, emotional and psychological safety, security and well-being.

The Divorce Act also states that a child should have as much time with each spouse as is consistent with the child's best interests, always subject to those best interests. Family violence and its impact is a listed factor, and the court looks at whether there is a pattern of coercive and controlling behaviour.

Family violence is defined broadly. It includes conduct that is violent or threatening, a pattern of coercive and controlling behaviour, or conduct that causes a family member to fear for their safety, and it covers physical, sexual, psychological and financial abuse and harassment such as stalking. If you left an abusive situation, you can still apply for parenting of your children.

Urgent situations and safety

A motion without notice is allowed where notice is unnecessary or not reasonably possible, or where there is an immediate danger that a child will be removed from Ontario or to someone's health or safety and delay would probably have serious consequences. You ask permission in your motion form and file a draft Form 14D, and you do not serve the other party.

After a without-notice order, you usually must return to court within 14 days so the other party can respond, and the judge then decides whether the order stays, changes or ends. Costs may be ordered against a party if the motion was not necessary.

Where there is family violence, Justice Canada recommends a safety plan for you and your children, and notes separation can be a particularly dangerous time. If the children might be in danger, you can contact police to take you to a shelter or safe place.

What to do next

• Write down the current schedule: where the child sleeps, who handles school and medical matters, and when it started.
• Keep communications with the other parent calm and in writing where possible, and avoid threats or disputes in front of the child.
• Consider proposing a written parenting plan or separation agreement, since a written arrangement is easier to enforce.
• If you cannot agree, speak with a family lawyer about applying for a parenting order.
• If you fear the child will be removed from Ontario or there is danger, get legal advice promptly and call police in an emergency.

Frequently asked questions