How do parenting time and decision-making get decided in a divorce?

The terms changed in 2021: no more custody or access

Since March 2021, the Divorce Act no longer uses custody or access. Parenting time is the time a child spends in a parent's care, including day-to-day decisions during that time. Decision-making responsibility is the authority over significant decisions — health, education, culture, religion and significant extracurricular activities — and can be given to one parent or shared. Ontario's Children's Law Reform Act uses the same terms for parents who were never married.

The change was about language, not a shift in what actually gets decided. The same questions — where the children live, who decides what, and how time is shared — still have to be answered; they are just described differently now.

The best interests test

Both the Divorce Act and the Children's Law Reform Act require any parenting order to be based only on the child's best interests, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. Other factors include the child's needs and stage of development, the strength of the child's relationship with each parent and sibling, each parent's willingness to support the other's relationship with the child, the history of care, and the child's own views, given appropriate weight for their age.

Family violence, including coercive and controlling behaviour under the Divorce Act's 2021 definition, is a factor a court must consider, and can affect both parenting time and decision-making responsibility.

Equal entitlement until something changes it

Parents have equal entitlement to decision-making responsibility for their child under section 20 of the Children's Law Reform Act, until an agreement or order changes it. This does not mean an automatic equal-time schedule; entitlement to decision-making and the time a child actually spends with each parent are different questions, decided on the same best-interests basis.

Where you can agree, most couples set out a parenting plan covering a regular schedule, holidays, decision-making and how you will communicate, without needing a court to decide any of it.

When you cannot agree

Where negotiation, mediation or a settlement conference does not resolve parenting issues, a court decides them, either as an interim order while the case continues or as a final order after trial. A judge can order a parenting assessment, appoint the Office of the Children's Lawyer to investigate or represent the child's views, or order supervised parenting time where safety is a genuine concern.

Courts generally prefer arrangements that support a child's relationship with both parents, but that preference gives way entirely where the evidence shows it is not in the child's best interests, particularly where there is a pattern of family violence.

Changing an arrangement later

A parenting arrangement, whether agreed or ordered, can be changed later where there has been a material change in circumstances affecting the child, or, for an agreement, simply by both parents agreeing to something new in writing. A court will not vary a working arrangement lightly, since stability itself is one of the factors in a child's best interests.

Relocation with a child is treated separately and more strictly, with specific notice requirements and factors under the Children's Law Reform Act that go beyond the general best-interests test.