What do decision-making responsibility and parenting time mean in Ontario?

Decision-making responsibility is the responsibility for making significant decisions about a child's well-being, such as health, education, culture, language, religion and major activities. Parenting time is the time a child spends in a parent's care. Since March 1, 2021, these Ontario and federal terms have replaced "custody" and "access".

What the terms mean in Ontario, and where they come from

For decades, Ontario parenting cases used the words "custody" and "access". On March 1, 2021, amendments to the Children's Law Reform Act came into force, and the federal Divorce Act was amended in the same way. The new terms describe what parents actually do, rather than who "wins". For an overview of how we help with parenting matters, see our custody and access (parenting) page.

Section 18(1) of the Children's Law Reform Act defines most of the key terms, and section 28 adds the parenting plan:

• Decision-making responsibility: responsibility for making significant decisions about a child's well-being, including with respect to (a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities.
• Parenting time: the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.
• Contact: the time a child spends in the care of a person other than the child's parent, such as a grandparent.
• Parenting order: an order respecting decision-making responsibility or parenting time.
• Parenting plan (s. 28(7)): a written plan submitted by the parties, which the court must include in its order to the extent the parties agree, subject to changes the court considers to be in the child's best interests (s. 28(7)).

The Divorce Act uses the same concepts for married parents who are divorcing, defining decision-making responsibility as "the responsibility for making significant decisions about a child's well-being".

How decision-making and parenting time work, step by step

1. Before any agreement or order. A child's parents are equally entitled to decision-making responsibility (s. 20(1)). If parents separate and the child lives with one of them with the other's consent, implied consent or acquiescence, the other parent's right to exercise decision-making responsibility (but not parenting time) is suspended until an agreement or order says otherwise (s. 20(4)).
2. Agree on a plan if you can. A separation agreement or written parenting plan can set out decision-making and a schedule. Our article on creating a parenting plan covers the practical content.
3. Apply to court if needed. A parent may apply for a parenting order on decision-making responsibility and parenting time (s. 21(1)), with an affidavit setting out a proposed plan for the child's care, any involvement in family or criminal proceedings, and information relevant to the best interests factors (s. 21(4)).
4. The court decides on best interests. The court only takes into account the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being (s. 24); see how courts decide a child's best interests.
5. The order allocates responsibility and time. Decision-making can be given to one or more persons, in whole or in parts, and parenting time can be set by a schedule (s. 28(4) and (5)).
6. Changes later. An order can only be varied if there has been a material change in circumstances that affects or is likely to affect the child's best interests (s. 29(1)).

Old terms and new terms

Day-to-day decisions and information rights

Parenting time carries its own authority. Unless the court orders otherwise, a person who has parenting time has exclusive authority during that time to make day-to-day decisions affecting the child (s. 28(6)). Bedtimes, meals and weekend plans are decided by the parent the child is with; significant decisions follow the allocation of decision-making responsibility.

Both forms of responsibility come with information rights. Parenting time includes the right to visit with and be visited by the child, and the same right as a parent to make inquiries and be given information about the child's well-being, including health and education (s. 20(5)). A person with decision-making responsibility or parenting time under a parenting order is entitled to ask for and, subject to other laws, receive information from the other parent and from others likely to have it, such as schools and doctors, unless the court orders otherwise (s. 28(8)).

What changes the answer

• The child's best interests decide every parenting order, including interim orders and variations (s. 24(7)).
• Maximum parenting time principle. In allocating parenting time, the court gives effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests (s. 24(6)). It is not a presumption of equal time.
• Family violence. Violence and its impact on the ability to care for the child and to co-operate is a listed factor, with detailed sub-factors (s. 24(3)(j) and (4)).
• Ability to co-operate. Joint decision-making depends heavily on the parents' ability and willingness to communicate and co-operate (s. 24(3)(i)).
• Moves. A relocation of the child has its own notice and decision rules; see moving with a child after separation.
• Travel. Orders can restrict removing a child from Ontario or require passports to be held (s. 28(1)(c)(iv) and (v)); see travelling with your child.
• Child support. The parenting schedule affects child support, especially if each parent has at least 40 per cent of the time; see child support with shared parenting.

A worked example

For example, imagine Toronto parents of a nine-year-old who separate and agree that the child will live mainly with one parent during the school week and with the other parent every second weekend and one evening each week. They communicate well about school but disagree about religion.

They could sign a parenting plan giving them joint decision-making responsibility for health and education, with a process for resolving disagreements, and allocating decisions about religious upbringing to one parent after consultation with the other, as section 28(4) allows. Each parent makes day-to-day decisions during their own time. Both can speak directly with the school and doctor. If they later cannot agree, either can apply to the court, which would decide on the child's best interests, including the child's views given their age and maturity; see whether a child gets a say. This example is hypothetical.

Common mistakes with decision-making and parenting time

• Using "custody" as if it still decides everything. Older agreements may still use the word, but courts now speak of decision-making responsibility and parenting time.
• Treating parenting time as a reward. Time is set for the child's benefit, not as a prize for either parent.
• Making significant decisions alone when responsibility is joint. Changing schools or starting a medical treatment without the other parent can breach an order.
• Withholding information. Both parents generally have the right to ask for and receive information about the child.
• Ignoring the order when things get difficult. Remedies exist when an order is not followed; see when a parenting order is not followed.
• Forgetting grandparents and others. Non-parents ask for contact, not parenting time; see grandparents and contact.

What to do this week

1. Write down the current schedule and who has been making which decisions since separation.
2. List the significant decisions coming up: school choice, health treatment, religion, activities.
3. Note where you and the other parent agree and where you do not.
4. Gather school, medical and activity records that show each parent's involvement.
5. Draft a simple parenting plan proposal, starting with the schedule and decision-making.
6. Book a free consultation with us to turn the proposal into a clear, workable agreement.

Frequently asked questions

Do old orders that say "custody" still count?

Yes. Under section 76 of the Children's Law Reform Act, unless a court orders otherwise, a person who had custody under an order or separation agreement immediately before the change is deemed to have decision-making responsibility, and a person who had access is deemed to have parenting time (if a parent) or contact (if not a parent), on the same terms as before.

Is 50/50 parenting time the starting point?

No. The law says a child should have as much time with each parent as is consistent with the child's best interests (s. 24(6)). That may or may not mean equal time.

Can a parent with less time still help make decisions?

Yes. Decision-making responsibility and parenting time are separate. A parent with less time can have joint decision-making responsibility.

What happens if the parents' child gets married?

The entitlement to decision-making responsibility or parenting time terminates on the marriage of the child (s. 20(6)).

Where are parenting cases heard in Toronto?

Parenting claims under the Children's Law Reform Act can be heard in the Ontario Court of Justice in Toronto, and in the Superior Court when they are part of a divorce. See the Ontario Court of Justice family courts in Toronto.

Can someone other than a parent get decision-making responsibility?

Yes. Any person other than a parent, including a grandparent, may apply for decision-making responsibility (s. 21(2)), and must file a recent police records check (s. 21.1).

Is there a course parents must take?

In most court cases about decision-making responsibility, parenting time or contact, the parties must attend a mandatory information program early in the case, unless an exception applies, such as a case proceeding on consent (Family Law Rules, r. 8.1). It explains the court process and the effects of separation on children.

Sources

• Children's Law Reform Act, R.S.O. 1990, c. C.12 (ss. 18, 20, 21, 21.1, 24, 28, 29)
• Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (s. 2 definitions, s. 16)
• Family Law Rules, O. Reg. 114/99 (r. 8.1)