When parents separate or divorce, few issues are more emotionally charged or more important than decisions about the children. Where will they live? How much time will they spend with each parent? Who makes decisions about their education, healthcare, and upbringing?
In Ontario, the legal framework for these questions is built around a single, paramount principle: the best interests of the child. While this sounds straightforward, applying it to real families involves nuance, complexity, and often difficult decisions.
Note on terminology: In March 2021, amendments to the federal Divorce Act replaced the terms "custody" and "access" with "decision-making responsibility," "parenting time," and "contact" (for non-parents). This article uses the current terminology throughout.
Many people use the word "custody" loosely to mean where children live, but the law has always distinguished between two separate questions: who makes important decisions about a child's life, and how much time the child spends with each parent.
Decision-making responsibility refers to the authority to make major decisions about a child's life, including:
When parents share joint decision-making responsibility, they must communicate, cooperate, and agree on significant issues affecting the child.
When one parent has sole decision-making responsibility, that parent can make major decisions independently, without requiring the other parent's input or agreement.
This distincition is often the major point of disagreement between the parents. For joint decision making to work, at least some level of cooperation between the parents must be present or available.
Parenting time refers to when the child is in each parent's care. Common arrangements include:
Primary residence: The child lives primarily with one parent and has scheduled parenting time with the other.
Shared parenting: The child spends substantial time with both parents — children spending somewhere between 40% and 60% of the time with each parent
Split arrangements: In families with multiple children, some children live primarily with one parent while others live primarily with the other. Courts generally prefer to keep siblings together, so this is relatively rare.
Misconception #1: "Joint custody" means 50/50 time sharing. Not necessarily. Parents can share decision-making responsibility while one parent has primary residence. Decision-making describes who makes decisions, not how time is divided.
Misconception #2: "If the other parent has sole decision-making responsibility, I have no rights." Even when one parent holds sole decision-making responsibility, the other parent typically has scheduled parenting time and makes the day to day decisions during that time. Often the parent also has equal right to information about the child's health, education, and welfare.
Misconception #3: "Parenting orders are permanent." Parenting arrangements can be varied if there's a material change in circumstances. They often need to evolve as children grow and family situations change.
Every parenting decision in Ontario must be made based on the best interests of the child. This is the paramount consideration — it trumps parental preferences, convenience, or what might seem "fair" to the parents.
The federal Divorce Act and the Children's Law Reform Act list substantially similar and specific factors for courts to consider in determining best interests of children. Among the most significant are the following:
1. The child's needs, given their age and stage of development. This includes physical, emotional, and psychological needs. A teenager's needs differ significantly from a toddler's.
2. The nature and strength of the child's relationship with each parent. Courts look at the quality of the relationship, not just quantity of time. Who has been the primary caregiver? What role has each parent played?
3. Each parent's willingness to support the child's relationship with the other parent. This is crucial. A parent who undermines the other parent's relationship with the child, makes derogatory comments, or interferes with parenting time may find this counts against them.
4. The history of care of the child. Who has historically been responsible for day-to-day care? Who takes the child to appointments, helps with homework, handles bedtime routines?
5. The child's views and preferences. Depending on the child's age and maturity, their wishes may be considered — but are not determinative. A 16-year-old's preference carries more weight than a 6-year-old's.
6. The child's cultural, linguistic, religious, and spiritual upbringing. Maintaining continuity in these areas is important for a child's identity and well-being.
7. Any family violence and its impact on the child. This includes violence between parents, violence toward the child, and the child's exposure to violence. Courts take this very seriously.
8. Any civil or criminal proceedings relevant to the child's safety. Past child protection involvement, restraining orders, or criminal charges may be relevant.
9. Each parent's ability to care for and meet the needs of the child. This encompasses practical ability (housing, work schedule, support system) and parenting capacity.
10. The positive impact of maintaining relationships with family members. This includes siblings, grandparents, and other important people in the child's life.
One factor that often surprises parents is how much weight courts place on each parent's willingness to support the child's relationship with the other parent. Courts strongly favour parents who:
Conversely, a parent who alienates the child from the other parent, interferes with parenting time, makes false allegations, or uses the child as a weapon in the conflict may find the court views them as less suitable or in some cases, unsuitable — even if they're otherwise a good parent.
There's no one-size-fits-all arrangement. What works depends on the child's age, the parents' relationship, work schedules, geographic distance, and numerous other factors. The following are some typical arrangements that the courts will order, or parties may agree to adopt.
The child alternates weekly between parents. This can work well for school-aged children and provides extended time with each parent, but requires the child to go a full week without seeing the other parent.
Pros: Consistency within each week, less frequent transitions, allows each parent to settle into routines. Cons: Long stretches without seeing the other parent; can be difficult for younger children.
The child spends two days with Parent A, two days with Parent B, then three days with Parent A, and the pattern repeats with the three-day block alternating. Each parent has the child every other weekend.
Pros: Neither parent goes more than three days without seeing the child; both get weekend time. Cons: Frequent transitions; can be logistically challenging.
The child spends two days with one parent, two days with the other, then five days with the first, then five days with the second.
Pros: Regular repeating schedule; both parents get both short and extended periods. Cons: Requires coordination and can be complex to track.
The child lives primarily with one parent and has scheduled parenting time with the other — often alternating weekends plus a midweek visit.
Pros: Provides stability through a primary home; maintains relationship with both parents. Cons: Less time with the non-primary parent, which some families find insufficient.
Many families create unique schedules tailored to their specific circumstances. This might include alternating weeks with a midweek overnight, splitting the week at a fixed point, different arrangements during the school year versus summer, or schedules that accommodate shift work or irregular hours.
A comprehensive parenting plan is essential for reducing conflict and providing clarity. A good parenting plan addresses:
While technically separate from parenting arrangements, plans often address child support amount and payment schedule, division of section 7 expenses (childcare, extracurriculars, health expenses not covered by insurance, post-secondary education), and tax benefits and credits.
As children mature, their views about parenting arrangements may become increasingly important. However, the law is clear: the child's views are one factor, not the deciding factor.
There's no magic age at which a child gets to "choose." Instead, courts consider the child's age and maturity, whether the child has been influenced or coached, the reasons for the child's preferences, and whether those preferences are based on substantive parenting concerns or more superficial factors. The older the child, the more likely the court is to follow that child's views and preferences. By the time the child is a teenager, the court is likely to order terms in accordance with the child's preferences. The challenge is determining those views in a fair and objective manner.
Parenting time arrangements can be structured with varying degrees of specificity.
Flexible parenting time means parents work out the schedule between themselves as needed. This only works when parents can communicate and cooperate effectively.
Specified parenting time sets out specific days, times, and conditions. This is more common and provides clarity, reducing opportunities for conflict.
In cases involving safety concerns — such as domestic violence, substance abuse, mental health issues, or risk of abduction — the court may order that parenting time be supervised. Supervision may be provided through a professional agency with trained supervisors, a trusted family member or friend, or at a designated supervised access centre. Supervised parenting time is temporary in most cases, with the goal of transitioning to unsupervised time once concerns are addressed.
Parenting time can be restricted or denied only in exceptional circumstances where contact with a parent would harm the child. Even parents who have been abusive or have serious problems often retain some form of parenting time, though it may be limited or supervised.
If a parent isn't complying with the parenting order or agreement:
Step 1: Document the violations carefully. Step 2: Attempt to resolve through communication or perhaps mediation. Step 3: If necessary, bring a motion to enforce or seek a contempt order. Step 4: In serious cases of repeated interference with parenting time, police may be involved in enforcement.
Circumstances change — children grow, parents relocate, work situations shift. To vary a parenting order, you must show a material change in circumstances since the last order, that the change affects the child, and that the proposed variation is in the child's best interests.
Changes that might justify variation include a parent's work schedule significantly changing, relocation of one parent, changes in the child's needs or preferences as they mature, concerns about a parent's parenting ability, or the introduction of a new partner or family member.
One of the most contentious parenting issues arises when a parent wants to move. Ontario law distinguishes between a relocation — a move that can reasonably be expected to have a significant impact on the child's relationship with the other parent — and a move that doesn't significantly affect the parenting arrangement.
Under the Divorce Act, a parent planning to relocate with a child must provide at least 60 days' written notice to the other parent (or as much notice as possible in urgent situations).
In addition to the best interests of the child, courts consider numerous factors when one parent opposes a proposed relocation. They are set out in the Children's Law Reform Act s. 39.4(3):
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.
Relocation cases are highly fact-specific and often require litigation if parents cannot agree.
While parenting arrangements primarily concern parents, grandparents and other family members may also seek contact with children. Under Ontario law, grandparents don't have automatic rights but can apply for contact. Courts consider whether contact is in the child's best interests, the nature of the relationship, whether contact would interfere with the parent-child relationship, and the reason the parent is opposing contact.
In complex or high-conflict cases, courts may order assessments to help determine what's in the child's best interests:
Section 30 Assessments (under the Children's Law Reform Act) are comprehensive assessments conducted by a psychologist or social worker that examine each parent's parenting capacity, the child's needs and adjustment, parent-child relationships, and any mental health or safety concerns. These typically cost $15,000–$40,000 and take several months to complete.
Voice of the Child Reports focus specifically on obtaining and presenting the child's views to the court. Less extensive and expensive than full assessments.
Parenting Capacity Assessments focus on one parent's ability to parent, often ordered when specific concerns exist around mental health, substance abuse, or similar issues.
Some separating parents find themselves in ongoing, intense conflict. This is harmful to children and requires special attention.
When parents can't co-parent cooperatively, parallel parenting allows each to parent independently during their own time with the children, with minimal communication and interaction between parents.
A neutral professional helps parents implement their parenting order, make day-to-day decisions, and resolve disputes without going to court repeatedly.
Courts may order counselling, co-parenting programs, or therapy to address high-conflict dynamics and their impact on children.
Put children first: This is more than a slogan. Children suffer when caught in parental conflict. Make decisions based on their needs, not your feelings about your ex.
Maintain routines: Children thrive on predictability. Try to keep routines consistent across homes where possible.
Communicate about children only: Keep parenting communication focused on the children, businesslike, and free from accusations or rehashing the relationship.
Be flexible: Life happens. Doctor appointments, school events, and children's needs don't always align with the schedule. Reasonable flexibility benefits everyone.
Don't badmouth the other parent: This damages children and will count against you in court.
Document concerns appropriately: If you have legitimate safety concerns, document them properly. But don't obsessively track minor issues or use documentation as a weapon.
Get help early: Don't wait until things are unbearable to seek legal advice.
John Sheard understands that parenting disputes are among the most emotionally challenging aspects of family law. With extensive experience in both negotiated parenting arrangements and contested litigation in private practice, and also representing children as an agent for the Office of the Children's Lawyer, he works with clients to develop practical, child-focused solutions that protect parental relationships while prioritizing children's wellbeing. His approach emphasizes early resolution where possible, while providing strong advocacy when court involvement becomes necessary.
When parents separate, reaching agreement on parenting arrangements doesn't have to mean going to court. Mediation offers a structured but less adversarial alternative, where a neutral third party helps both parents work through disagreements and develop a parenting plan that works for their family. It's typically faster and significantly less expensive than litigation, and because parents craft the agreement themselves rather than having one imposed by a judge, they're often more likely to follow it. Mediation can address the full range of parenting issues — schedules, decision-making, holidays, communication protocols — and can be particularly effective when parents are willing to prioritize their children's needs over their own conflict. Where mediation isn't appropriate, such as in situations involving family violence or a significant power imbalance, other processes are available. John Sheard is a certified family mediator as well as an experienced litigator, which means he can help you assess which approach best fits your situation and represent your interests effectively either way.
At Sheard Law, we understand that decisions about parenting arrangements affect your children's lives and your relationship with them for years to come.
Whether you're trying to negotiate a parenting plan or facing a contested dispute, we can help you:
Contact Sheard Law today to schedule a consultation. Call us, Email us, or fill out our intake form to get started. Let us help you protect what matters most.
This article provides general information about parenting arrangements in Ontario. It is not legal advice. For advice about your specific situation, consult with a lawyer.
