Parenting Time and Decision-Making in Ontario

When parents are going through a separation or divorce, some of the most difficult decisions that need to be made are those concerning the children. Who will the children live with? Who will have decision-making authority? What happens if the parents cannot agree? In the article below, we introduce the basic concepts behind Ontario child decision-making authority and parenting time, two terms that encompass parenting, along with some of the most common issues faced by parents.

What is the Difference Between Custody and Access?

The Divorce Act was amended in 2020 to replace custody with decision-making authority, and access with parenting time. This change in terminology places emphasis on the best interests of the child, reducing the win-lose parent-focused mentality.

What is Parenting Time in Family Law?

Parenting time is any time that your child is in your care, whether or not they are physically present with you.

What is Decision-Making Authority in Family Law?

Decision-making authority enables one or more parents to decide important decisions on a child’s life and wellbeing that have an impact on the child’s health, education, religion, and other essential matters.

Introduction to Decision-Making Authority and Parenting Time in Ontario

Children often benefit from having a relationship with both parents. Ontario family law recognizes that where appropriate, parents should share in the parenting decisions related to their children, as well as the time spent with their children.

In some circumstances, parents wish to maintain joint parenting and make decisions regarding their children jointly but decide that it would be in the child’s best interests to have the child live primarily with one parent.

In these situations, the parent with whom the child does not reside most of the time can foster her or his relationship with the child through parenting time. This term simply refers to the time that the other parent will spend with their child.

Where parents can agree on how to split their time with their child, this arrangement can be as detailed or as open-ended as the parties agree. For example, parents may wish to outline which holidays are spent with whom in advance. This can reduce conflict for the whole family as each holiday approaches. This can also prevent any dispute as to what an equitable sharing of the child’s time is.

Types of Court Ordered Parenting Structures and Child Support

A court order can be made to provide parents with a solution where they cannot agree on the major decisions involving their child or on how to allocate the child’s time with each parent.

1. Shared Parenting

If each parent has the child at least 40% of the time, the Child Support Guidelines say there is shared parenting. This refers only to the residential agreement and should not be confused with the term joint decision-making authority, which refers to the parents’ joint right to make major decisions for the child. When there is shared parenting, the amount of support paid to the primary residental parent might be less than the amount set out in the table. Therefore, the term shared parenting only refers to the amount of time spent with the child.

There is no formula in the Guidelines for determining how much time is spent with each parent in a shared parenting scenario. The onus is on the parent who claims they have shared parenting time to show that the child is with him or her at least 40% of the time.

If the judge finds that the child spends at least 40% of their time with the parent who pays support, the Guideline table amount will no longer apply. Instead, the judge will look at the gross income of each parent to determine the child support amount, as well as of time the child spends with each parent. This takes into account the reality of a shared parenting arrangement, because the more time the child spends with each parent, the more each parent is expected to provide basic items for the child, such as pajamas, toys, clothes, and bedding. Judges must consider these extra costs when they set support amounts for shared parenting.

2. Split Parenting

Sometimes when parents with more than one child separate, one or more of the children will live with each parent. When this happens, child support depends on the income of both parents. How much support each parent would owe for any children living with the other parent is figured out according to the Guidelines. The parent who owes the higher amount must pay the difference between the two amounts to the other parent.

Take the example of one parent who is the primary residential parent of two children and an income of $25,000, and the other parent who is the primary residential parent of one child and an income of $45,000. According to the table, the parent with the lower income owes the other parent $211 a month in support for the one child who lives with that other parent. The parent with the higher income owes the other parent $680 a month in support for the other two children. When you subtract $211 from $680, the higher-income parent owes the other parent $469 a month in child support.

3. Sole Decision-Making Authority

When a parent has sole decision-making authority of a child, this means that they are solely authorized to make major decisions for the child, to the exclusion of the other parent. In these cases, it makes sense that the child’s primary residence will be with the parent having sole decision-making authority. Therefore, to determine how much child support is to be paid, the courts are required to look to the Child Support Guidelines, which outline a table amount that is based on the payor parent’s income. The recipient parent’s income is irrelevant to this determination, as Child Support is the right of the child to receive. In some cases, the recipient parent’s income may be relevant, if there are special or extraordinary expenses to be shared above the Table amount. Since the Table amount is meant to cover only regular day to day expenses, such as food, clothing, and shelter, any additional, or extraordinary expenses, are generally shared between both parents, proportionate to their incomes. Some examples of these expenses include daycare, dance lessons, and medical expenses not covered under a medical plan.

How are Decisions Made About the Children in Divorce?

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have parenting time and decision-making authority of the children.

If the parents cannot agree on an arrangement, Ontario family law defines basic principles that a judge must consider when making decisions about children.

  • The best interests of the children come first.
  • Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
  • The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.

How Does a Judge Decide What is in the Child’s Best Interest?

When deciding on the best interests of the child, the judge will take into account a number of factors including:

  • Parenting arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
  • The parent-child relationship and bonding.
  • Abilities of each parent.
  • The mental, physical and emotional health of each parent.
  • Schedules of both the parents and the children.
  • Additional support. (For example, help and involvement from grandparents and other close relatives).
  • Siblings. (Generally, siblings remain together, but under some circumstances it may be necessary to consider separating them.)
  • The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

The Concept of “Mobility” in Family Law: Whether a Parent Has the Right to Move with their Child

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a parenting schedule put in place. But as time passes, there may be other developments as well; for example, the parents may embark on new relationships with new partners or change jobs. The potential impact on any court-ordered support, decision-making authority or specific parenting time arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationship or new job encourage them to move, the concern is even greater. This is because such scenarios give rise to a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the parenting arrangements that are in place.

In family law, this is known as “mobility”.

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the parent with whom they primarily reside. A 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:

“The focus is on the best interests of the child, not the interests and rights of the parents.”

Courts are required to make a “full and sensitive” inquiry. This means they are obliged to take into consideration a vast array of factors, including:

  • the existing parenting arrangement and relationship between the child, the custodial (primary residential) parent, and the non-primary residential parent;
  • the desirability of maximizing contact between the child and both parents;
  • the views of the child;
  • the custodial (primary residential) parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
  • the disruption to the child of a change in parenting; and
  • the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is worth pointing out that in making this assessment, there is no presumption in favour of either parent.

Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation. Under the federal Divorce Act, for example, provides that if a court gives one parent decision-making authority of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period). The non-primary residential parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the parenting arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.

Top 3 Co-Parenting Tips to Consider When Arranging Schedules for Summer Break

The task of juggling parenting responsibilities can be difficult at the best of times. The summer holidays can add further unpredictability to the situation in the absence of school routines, the desire to maximize the time off, and the impetus to travel and enjoy the nice weather.

1. Always consider what’s best for the children

This principle is certainly not limited to summer planning, but the desire to maximize travel and holiday opportunities can obscure its importance somewhat. Always keep in mind that switching between homes and travelling long distances can be hard on children any time of the year, but during the added free time of summer the inconvenience and stress can multiply.

2. Take into account the nature of the parenting relationship

If you and the child’s other parent are in a high conflict situation and have difficulty achieving a successful day-to-day arrangement for parenting, then it will come as no surprise that planning for the summer may be equally if not more challenging. Assuming that the arrangements are not already covered in a formalized parenting schedule, it may be worthwhile for you and the other parent to craft a separate negotiated agreement; it should ideally cover how decision-making, parenting time, travel, camps, and other activities during the summer months will be handled, and how any desired changes are to be communicated to each other.

3. Plan well ahead

Most separated and divorced parents have full-time jobs. This means that it will take some pre-planning and advance requests for vacation time from an employer so that you and your child’s other parent can each maximize the time you can spend quality time with your child over summer. This is especially true for parents of older children, who may be at the age that they are making some plans with friends in their own peer group. It may mean that you, the other parent, and the children have to sit down with a calendar early in the season and figure out what arrangements are feasible for the coming months.

How We Help Parents

Russell Alexander Collaborative Family Lawyers is dedicated to helping clients achieve the most appropriate resolutions, through settlement, court, and/or collaboratively. Our team can help by:

  • Determining your goals regarding decision-making authority and parenting time and providing you with options on how to achieve these goals.
  • Regularly corresponding with you to obtain updates and provide you with the status of your case.
  • Negotiating on your behalf with the other party or their lawyer.
  • Drafting an agreement to outline the terms of your parenting arrangements, including any detailed schedules for access that the parties have negotiated.
  • Where negotiations fail, completing court documents on your behalf and meeting with you to review them.
  • Filing your application in court and representing you at every stage of the court process.
  • Taking the necessary steps to have your agreement or court order regarding parenting enforced.

We know that the end of a marriage or common law relationship can be difficult for everyone involved. Therefore, we strive to achieve a suitable resolution in a friendly and efficient manner.