- The vocabulary changed: “custody” and “access” have given way to decision-making responsibility and parenting time.
- The only test is the best interests of the child. Parental fairness is not the question.
- There is no presumption of equal time, and no presumption in favour of either parent.
- A child’s views carry weight that increases with age and maturity, but a child does not choose.
The change in language
The old terms did real damage. “Custody” sounded like ownership and “access” sounded like a visitor’s pass, and parents fought over the labels well past the point of usefulness.
The current framework separates two different things. Decision-making responsibility is the authority to make significant decisions about a child, health, education, religion, significant extracurricular activities. Parenting time is the schedule: when the child is with each parent.
They are genuinely independent. A parent can have substantial parenting time and no decision-making authority, or share decision-making while the child lives primarily with the other parent.
What “best interests” actually involves
This is the only test. It is not about what either parent deserves, what is even-handed, or what was agreed before the relationship ended.
The legislation sets out factors, and courts work through them. They include the child’s needs given their age and stage of development; the nature and strength of the child’s relationships with each parent and with siblings and others; each parent’s willingness to support the child’s relationship with the other parent; the history of care; the child’s views and preferences; the child’s cultural and linguistic heritage, including Indigenous heritage; any plans for the child’s care; and any family violence.
The willingness-to-support factor is worth dwelling on. A parent who undermines the child’s relationship with the other parent is not merely being difficult; they are giving a court a reason to doubt their judgment about the child.
No presumptions
There is no presumption of equal parenting time in Ontario, and there is no maternal presumption. Both beliefs are common and neither is right.
What the court does is look at the particular child and the particular parents. Distance between homes, work schedules, the child’s age, the child’s school, and how care was actually divided before separation all feed in.
Equal or near-equal schedules are ordered often, because they frequently suit the family. They are not a starting point that a parent has to argue their way out of.
Where a child’s views fit
A child’s views are a factor, weighted by age and maturity. A sixteen-year-old’s preference carries considerable weight; a six-year-old’s is treated more cautiously.
Views are usually put before the court through a professional rather than by having the child testify. The purpose is to hear the child without putting them in the middle.
The distinction that matters: a child is heard, not asked to decide. Handing a child the decision places a burden on them that the system deliberately avoids.
Family violence
Family violence is a specific consideration, defined broadly enough to include coercive and controlling conduct, not only physical violence, and to include a child’s exposure to violence between adults.
Where it is present, a court considers its nature and seriousness, whether there is a pattern, and the risk to the child and to the other parent, and it shapes what arrangements are appropriate.
Changing an arrangement
Parenting orders can be varied, but there is a threshold: a material change in circumstances since the order was made. Without one, the matter is not reopened.
This is deliberate. Children need stability, and a system that allowed the schedule to be relitigated whenever a parent was unhappy would produce the opposite.
Relocation, one parent moving with the child, has its own framework, including notice requirements. Moving first and asking afterwards is a serious mistake.
Common questions
At what age can a child decide where to live?
There is no such age. Views carry more weight as a child matures, but the decision remains with the parents or the court throughout.
Does the parent with more parenting time make the decisions?
Not necessarily. Decision-making responsibility and parenting time are determined separately.
Can I stop parenting time if support is not being paid?
No. They are separate obligations, and withholding a child over money is treated seriously and reflects badly on the parent who does it.
Do grandparents have rights?
They can apply for contact, and the test remains the child’s best interests. It is a harder application than a parent’s, particularly where both parents object.
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