Understanding Child Custody in Ontario

What is Child Custody?

Child custody refers to the legal rights and responsibilities of parents in making significant decisions about their child’s life, including education, healthcare, religion, and overall well-being. Custody is not solely about where the child resides but also about who has the authority to make major decisions.

Under Ontario law, child custody is determined based on the best interests of the child, a principle outlined in both the Children’s Law Reform Act (provincial law) and the Divorce Act. Courts consider various factors when making custody decisions, including the child’s relationship with each parent, stability, and each parent’s ability to meet the child’s needs.

 

Types of Custody in Ontario

1. Sole Custody

In a sole custody arrangement, one parent has the exclusive right to make major decisions about the child’s life. The other parent may still have access or visitation rights, but they do not have decision-making authority.

When is sole custody granted?

• When one parent is deemed unfit due to issues such as substance abuse, neglect, or domestic violence.
• When parents have a high-conflict relationship that prevents them from making joint decisions.
• If one parent has been the primary caregiver, and continuity is in the child’s best interest.

2. Joint Custody

In joint custody, both parents share the responsibility of making major decisions for the child. However, joint custody does not necessarily mean equal parenting time.

Key Features of Joint Custody:

• Parents must be able to communicate effectively and make decisions together.
• Both parents must agree on significant aspects of the child’s upbringing.
• The child may live primarily with one parent, with the other having scheduled parenting time.

3. Shared Custody

Shared custody occurs when both parents have at least 40% parenting time with the child. This arrangement allows for equal decision-making and significant involvement in the child’s life.

Advantages of Shared Custody:

• The child maintains strong relationships with both parents.
• Parents share responsibilities more equally.
• It can reduce financial disputes related to child support, as both parents contribute to expenses.

Challenges of Shared Custody:

• Requires strong cooperation and co-parenting skills.
• Can be difficult if parents live far apart.
• Stability and consistency must be maintained for the child.

4. Split Custody

In split custody, siblings live separately, with each parent having custody of at least one child. While less common, this arrangement may be appropriate in cases where:

• Siblings have a strained relationship and prefer different living arrangements.
• One parent is better suited to meet a specific child’s needs.
• Older children express a strong preference for residing with a particular parent.

Considerations for Split Custody:

• Courts are hesitant to separate siblings unless it is clearly in their best interests.
• Parents must ensure that siblings still maintain a strong relationship despite living apart.

 

How Ontario Courts Determine Custody Arrangements

Ontario courts always prioritize the best interests of the child when deciding custody arrangements. The following factors are considered:

1. Parental Relationship with the Child

The court examines each parent’s relationship and involvement in the child’s life, including who has been the primary caregiver.

2. Child’s Preferences

For older children, the court may consider their preferences, particularly if they can express a mature and reasonable opinion.

3. Stability and Routine

The ability to provide a stable home environment, maintain consistency in schooling, and ensure emotional well-being is a key consideration.

4. Parental Cooperation

Courts assess whether parents can communicate and work together in making decisions. A high level of conflict may lead to sole custody being awarded to one parent.

5. History of Abuse or Neglect

If there is evidence of domestic violence, neglect, or substance abuse, the court may limit parental rights to protect the child’s safety and well-being.

6. Financial and Living Situation

While financial status alone does not determine custody, the ability to provide a safe and supportive home is taken into account.

 

Understanding Parental Access (Parenting Time)

In Ontario, parental access, now referred to as parenting time under the Divorce Act, plays a crucial role in ensuring that children maintain meaningful relationships with both parents after a separation or divorce. Parenting time refers to the periods when a parent is responsible for the child’s care, including day-to-day decision-making.

Unlike custody, which determines who has legal decision-making authority over a child, parenting time focuses on the actual time a child spends with each parent. Courts in Ontario generally presume that it is in the child’s best interests to have regular and meaningful contact with both parents, except in cases where safety concerns exist.

Difference Between Custody and Parenting Time

Many people mistakenly use the terms custody and parenting time interchangeably, but they serve different legal functions:

Custody	Parenting Time (Access)
Refers to decision-making authority over a child’s upbringing (e.g., education, healthcare, religion).	Refers to the actual time a parent spends with the child.
Can be sole, joint, shared, or split custody.	Even a parent without custody is typically granted parenting time unless there are concerns about the child’s safety.
Determines who has the right to make major life decisions for the child.	Determines when and how the child will see each parent.

Standard Access Schedules in Ontario

Every family’s situation is different, and access schedules can be customized based on the needs of the child and the availability of each parent. However, courts typically recognize a few common parenting time arrangements:

1. Weekend and Weekday Visits

• The non-custodial parent has every other weekend(Friday evening to Sunday evening) and one or two mid-week visits.
• This is one of the most common arrangements, particularly when one parent has primary custody.

2. 50/50 Shared Parenting

• Parents split time equally, such as alternating week-on, week-offor using a 2-2-3 schedule (two days with one parent, two with the other, and alternating weekends).
• Works best when parents cooperate welland live near each other.

3. Holiday and Vacation Schedules

• Parents alternatemajor holidays like Christmas, Thanksgiving, and Easter.
• Summer vacationis often divided into extended time blocks (e.g., two weeks with each parent).

4. Flexible or Virtual Parenting Time

• When one parent lives far away, access may include longer school breaksor virtual visits (e.g., phone calls, video chats).

When parents cannot agree on a schedule, a court may impose a standard access plan based on the child’s best interests.

Supervised Access: When It Is Necessary and How It Works

In some cases, a court may order supervised access to ensure the child’s safety while allowing them to maintain a relationship with the non-custodial parent.

When Is Supervised Access Ordered?

Supervised parenting time may be necessary when:

• There is a history of domestic violence, neglect, or substance abuse.
• A parent has been absent for a significant period, and the child needs a gradual reintroduction.
• There are concerns about abduction risks(e.g., a parent threatens to take the child out of the country without permission).

How Does Supervised Access Work?

• Visits take place at a supervised access centre, where trained staff monitor and document
• A neutral third party(e.g., a trusted family member or social worker) may be assigned to oversee visits.
• In some cases, supervised phone or video callsare allowed instead of in-person visits.

Supervised access is usually temporary and reviewed periodically by the court to determine whether unsupervised visits can be introduced.

Denial of Access: When a Parent May Be Restricted from Visiting

Although Ontario courts emphasize the importance of both parents maintaining a relationship with their child, access may be denied or restricted in certain situations.

1. Risk to the Child’s Safety

• If there is evidence of physical, emotional, or sexual abuse, courts may suspendor terminate a parent’s access rights.
• In such cases, courts require strong evidence, such as police reports, medical records, or child protection investigations.

2. Parental Alienation or Interference

• If one parent manipulatesthe child against the other (e.g., making false allegations, refusing visits without reason), the court may adjust custody and access orders.
• Parents who consistently violate access ordersmay face legal consequences, including reduced parenting time.

3. Repeated Violations of Court Orders

• If a parent fails to show up for scheduled visits, neglects responsibilities, or is frequently late, courts may reduce their access.
• A pattern of unreliability can harm the child’s well-beingand disrupt stability.

4. Child’s Wishes (For Older Children)

• Older children’s preferences are considered, particularly if they have strong reasonsfor refusing access.
• However, courts assess whether the child’s wishes are independently formedor influenced by one parent.

If a parent is denied access without justification, they can seek legal enforcement of the court order. Courts have the authority to modify parenting plans and impose penalties on a parent who unlawfully restricts access.

 

Legal Options for Resolving Custody Disputes

Mediation and Alternative Dispute Resolution (ADR): How Mediation Can Help Parents Reach Agreements

Mediation and other forms of Alternative Dispute Resolution (ADR) are encouraged in Ontario as a way to settle custody disputes without court intervention.

What Is Mediation?

Mediation is a voluntary, confidential process where parents work with a neutral third-party mediator to create a mutually acceptable custody and parenting time arrangement. The mediator helps parents:

• Discuss their concerns and priorities.
• Develop a parenting planthat meets the child’s needs.
• Improve communication and co-parenting

Mediation is often quicker, less expensive, and less adversarial than litigation. It allows parents to maintain control over the decision-making process rather than having a judge impose a ruling.

Who Can Benefit from Mediation?

Mediation is suitable when:

• Both parents are willing to negotiatein good faith.
• There are no allegations of abuse, neglect, or serious conflictthat would make direct communication unsafe.
• Parents want to maintain a cooperative relationshipfor the benefit of the child.

If mediation fails, parents may proceed with arbitration (where a neutral arbitrator makes a binding decision) or collaborative family law, where lawyers help facilitate a negotiated settlement.

Court Proceedings: When Custody Disputes Require Litigation

When parents cannot agree on custody or parenting time, they may need to go to court to have a judge decide. Litigation should be a last resort due to its cost, emotional toll, and potential impact on the child.

When Do Custody Cases Go to Court?

Parents may need to pursue litigation when:

• There is high conflictbetween parents, making negotiation impossible.
• One parent is unwilling to cooperateor comply with previous agreements.
• There are concerns about abuse, neglect, or substance abuse.
• A parent is denying access or attempting to alienatethe child from the other parent.

What Happens in Court?

1. Filing an Application: A parent applies to the Ontario Court of Justiceor Superior Court of Justice for a custody order.
2. Case Conferences and Hearings: The court may hold conferencesto encourage settlement before trial.
3. Trial and Decision: If no agreement is reached, a judge will decide based on the best interests of the child.
4. Final Custody Order: The court issues a binding order outlining custody and parenting time.

While court proceedings can be lengthy and adversarial, they may be necessary in high-conflict cases where child safety is a concern.

Parenting Plans: How to Draft a Legally Sound Parenting Plan

A parenting plan is a written agreement that outlines how parents will share responsibilities and parenting time after separation or divorce. A well-drafted plan can help prevent future disputes by clearly defining expectations.

Key Elements of a Parenting Plan:

• Custody Arrangement(e.g., sole custody, joint custody, shared custody).
• Parenting Time Schedule(including weekends, holidays, and vacations).
• Decision-Making Authority(who makes major decisions regarding education, healthcare, and religion).
• Communication Guidelines(how parents will communicate about the child’s needs).
• Dispute Resolution Process(how conflicts will be handled without going to court).

Legal Considerations

• Parenting plans should be child-focusedand realistic.
• Plans can be informally agreed uponor submitted to court for legal enforcement.
• Courts may reject a parenting plan if it is not in the child’s best interests.

A family lawyer can help parents draft a legally sound plan that complies with Ontario’s Children’s Law Reform Act and Divorce Act.

Modification of Custody Orders: Changing Agreements Based on New Circumstances

Custody arrangements are not always permanent—they can be modified if there is a significant change in circumstances that affects the child’s well-being.

When Can a Custody Order Be Modified?

Parents can request changes if:

• One parent relocates, affecting parenting time.
• A parent’s work schedulechanges significantly.
• There is evidence of abuse, neglect, or safety concerns.
• The child’s needs or preferences changeas they grow older.
• One parent consistently violates the existing order.

How to Request a Modification

• Parents can mutually agreeto update the parenting plan and submit it to the court.
• If one parent disagrees, the other may file a Motion to Changein family court.
• The court will assess whether the modification is in the child’s best interestsbefore making a new order.