Family law in Ontario involves both federal and provincial legislation. Both courts preside over issues related to decision-making responsibility (formerly called “custody”), parenting time (formerly called “access”), and child support… and it can be confusing.
To cut through the noise, we’ve addressed some of the most frequently asked questions regarding decision-making and parenting time allowed with children:
1. With whom will my child live?
In decision-making responsibility cases in Ontario, courts prefer that parents reach an agreement on these issues. If there’s no dispute, the court tends to give decision-making responsibility to the spouse who asks for it. If you cannot agree on a parenting arrangement, the law sets out some basic principles that a judge must use when making decisions about children. The best interests of the children come first.
2. What is parenting time and who gets it?
Parenting time refers to the time your child spends in your care, regardless of whether the child is physically with you during that time (for example, if the child is at school). All parents who divorce or legally separate while their child is under 18 have the right to:
- Parenting time, unless the court decides it is not in the child’s best interest
- Know information about your children’s health, education, and general situation
3. What is “decision-making responsibility” and who gets it?
Decision-making responsibility means the responsibility for making significant decisions about your child’s well-being, including decisions about health, education, culture, language, religion and spirituality, and important extra-curricular activities.
If parents do not agree on something, the parent granted with the final decision-making authority can overrule the opinion of the other parent. But this does not mean that one parent can make unilateral decisions.
4. What is an assessment? Why would I want one?
An assessment is a report prepared by a third-party expert, called an assessor, to help you and your partner and the court determine decision-making responsibility, parenting time, and parenting arrangements. An assessment gives the judge independent evidence about your child’s wishes and/or what is in the best interests of the child. 99% of the time, the assessment is followed by the court.
5. I’m a grandparent. Do I have the right to spend time with my grandchildren?
It depends. As a grandparent, you may apply to the court and ask for a contact order. This allows you to spend time with your grandchildren. The judge uses a legal test based on the best interests of the child to decide if you can spend time with your grandchildren, and on what conditions. There is no “one size fits all” law.
6. I have a pending court order about parenting. As the custodial parent, can I move with my child?
No. The Supreme Court of Canada has determined that a custodial parent cannot automatically move a child anywhere without the other parent’s consent. Similarly, the Ontario Court of Appeal has also decided that a custodial parent does not have an inherent right to move a child anywhere he or she decides. It all comes down to what is in the best interests of the child(ren).
7. I don’t have a court order about parenting. Can I move with my child?
It depends. You can usually move without anyone’s permission if the move is not likely to have a big impact on your child’s relationship with your partner or anyone with decision-making responsibility, parenting time, or contact.
For example, you can usually move without permission if the move does not:
- Change your child’s school or daycare, and
- Impact anyone with rights to make decisions or spend time with your child
But if your move is likely to have a big impact on your child’s relationship with anyone with rights to make decisions or spend time with them, you usually need their permission or a new court order before you move.
8. How can I help my child cope with my separation or divorce?
Counselling programs for children are available in Ontario, for both individuals and groups. Family and individual counselling programs provide therapeutic support to children in crisis or with severe problems.
Most group programs offer education, emotional support, and coping skills. Some also provide intensive therapy. Group programs typically serve four to ten children, usually in groups based on age, through a course of weekly meetings.
9. Can my child decide with whom they want to live?
Ontario law has no pre-determined age at which children can decide which parent to live with or otherwise offer their preferences for the custody arrangement.
Judges will consider a child’s views and preferences at various ages, depending on the level of maturity exhibited by the child, their ability to express their views, and whether the child’s views and preferences show that they have put thought and reasoning into their position.
10. My child doesn’t want to visit my partner. What should I do?
Every parent should encourage their children to see their other parent, and not be derogatory about that parent. Otherwise, you’re inviting them not to go. If you alienate your kids from the other parent by advising them not to go, or not encouraging them to go, the other parent can file a parental alienation claim. And it can affect custody. Speak with your child to uncover the reason behind his or her reluctance to see the other parent.
We’re here for you
Family law is complex. At Howard Nightingale Professional Corporation, we can help you sort through the confusion. We’ll work with you and your family to efficiently resolve any disputes around decision-making responsibility and parenting time. We can put you in touch with family therapists and mediators who have special training and expertise in these types of issues.
Please reach out to us for assistance at our Toronto office at 416-663-4423 or toll free at 1-877-224-8225.
Your information will always remain private and confidential.