- Ontario law replaced "custody and access" with decision-making responsibility and parenting time in 2021.
- Courts decide parenting arrangements based entirely on the best interests of the child — not what either parent wants.
- Joint decision-making does not necessarily mean equal parenting time — the two concepts are separate.
- A child's own views may be considered depending on their age and maturity, but children do not simply "choose" which parent to live with.
- Past parenting involvement, willingness to support the child's relationship with the other parent, and any history of family violence are heavily weighed factors.
- Most parenting disputes settle through negotiation or mediation rather than trial — but understanding the legal test helps you negotiate from an informed position.
From "Custody" to New Terminology
If you searched for "child custody Ontario," you have likely noticed that lawyers and courts increasingly avoid that term. As of March 2021, amendments to the federal Divorce Act and Ontario's Children's Law Reform Act replaced "custody" and "access" with decision-making responsibility and parenting time.
This was not just a cosmetic change. The old terminology implied a "winner" and a "loser" — the parent with custody versus the parent with mere access. The new framework is intended to focus on the child's needs and each parent's role, rather than framing parenting arrangements as a contest between parents.
- Decision-Making Responsibility: The authority to make significant decisions about a child's health, education, religion, and general welfare.
- Parenting Time: The time a child spends in the care of each parent, whether or not that parent has decision-making responsibility.
- Contact: Time a child spends with someone other than a parent, such as a grandparent.
The Best Interests of the Child: The Only Test That Matters
Every decision about decision-making responsibility and parenting time in Ontario is governed by a single overarching principle: the best interests of the child. This is not a vague sentiment — it is a specific legal test with defined factors that judges must consider under both the Divorce Act and the Children's Law Reform Act.
Crucially, the test is not about what either parent wants, what is "fair" between the parents, or who was at fault for the relationship ending. Courts are legally required to set aside parental conflict and focus exclusively on what arrangement serves the child.
Parents who frame their case around the child's needs — schooling continuity, existing relationships, routine and stability — tend to fare better than those who frame it around perceived unfairness to themselves. Judges notice the difference.
Decision-Making Responsibility Explained
Decision-making responsibility covers major, long-term decisions — not day-to-day choices like what a child eats for breakfast. The core categories are:
- Health: Medical treatment, therapy, and healthcare decisions.
- Education: School choice, special education needs, and extracurricular decisions with significant cost or time implications.
- Religion: Religious upbringing and participation.
- Significant extracurricular activities: Activities involving major time or financial commitment.
Joint vs. Sole Decision-Making
Parents can share decision-making jointly (requiring agreement on major decisions), split it by category (for example, one parent decides on education, the other on health), or one parent can hold sole decision-making responsibility. Courts generally prefer joint decision-making where parents can communicate reasonably, reserving sole decision-making for situations involving high conflict, communication breakdown, or safety concerns.
Parenting Time Explained
Parenting time refers to the actual schedule — which days and nights the child spends with each parent. This is a completely separate question from decision-making responsibility, and the two do not need to mirror each other.
Two parents share decision-making responsibility jointly, meaning they must agree on major decisions about their child's schooling and healthcare. However, due to one parent's work schedule, the child spends the school week with one parent and alternating weekends with the other — an unequal parenting time split that has no bearing on their equal decision-making authority.
Factors Courts Actually Consider
The Divorce Act lists specific factors relevant to the best interests analysis. In practice, courts weigh:
- The child's needs, given their age and stage of development.
- The nature and strength of the child's relationship with each parent, siblings, grandparents, and other important people in their life.
- Each parent's willingness to support the child's relationship with the other parent.
- The history of care — who has historically handled the child's day-to-day needs.
- The child's views and preferences, given their age and maturity.
- Any history of family violence and its impact on the child's safety and well-being.
- Each parent's ability to care for and meet the child's needs.
- The child's cultural, linguistic, religious, and spiritual upbringing and heritage.
Courts specifically weigh each parent's willingness to foster the child's relationship with the other parent. A parent who speaks negatively about the other parent to the child, withholds parenting time without cause, or otherwise interferes with the co-parenting relationship can significantly harm their own position in a dispute.
Family Violence and Safety Concerns
The 2021 amendments introduced a specific, detailed definition of family violence that courts must consider, including physical abuse, sexual abuse, threats, harassment, and coercive or controlling behaviour — even if it did not result in criminal charges.
Where family violence is established, courts must consider its impact on the child's safety, security, and well-being, and may order supervised parenting time, restrict decision-making responsibility, or in serious cases, deny parenting time altogether.
If family violence is a factor in your case, document incidents as they occur — dates, descriptions, any police involvement, and witnesses. This documentation is often central to how a court assesses risk and structures a safe parenting arrangement.
How Parenting Disputes Are Actually Resolved
The overwhelming majority of parenting disputes in Ontario are resolved without a trial. The typical process includes:
- Negotiation between lawyers — often the fastest and least expensive resolution.
- Mediation — a neutral third party helps parents reach a voluntary agreement.
- Case conferences — an informal court appearance where a judge helps identify issues and encourages settlement.
- Settlement conferences — a more focused attempt at resolution before trial, where a judge may give a non-binding opinion on likely outcomes.
- Trial — reserved for cases where no agreement can be reached, involving evidence, witnesses, and a binding judicial decision.
Judges expect parents to make genuine efforts to resolve parenting disputes outside of trial. Refusing reasonable settlement offers or being unnecessarily combative can affect cost awards against you, even if you ultimately achieve a reasonable result at trial.
Common Parenting Arrangement Structures
| Arrangement | Description | Common When |
|---|---|---|
| Week About | Child alternates full weeks between parents | Parents live reasonably close, cooperative co-parenting |
| 2-2-3 Schedule | Rotating short blocks throughout the week | Younger children benefiting from frequent contact with both parents |
| Primary Residence + Alternating Weekends | Child lives primarily with one parent, regular weekend time with the other | School-age children, one parent with a demanding work schedule |
| Bird's Nest | Child stays in one home; parents rotate in and out | Short-term arrangements during transition periods |
| Supervised Parenting Time | Time with one parent supervised by a third party | Safety concerns, reintroduction after absence |
Every family's situation is different. Call our Toronto family lawyers at 416-274-2222 for a free 30-minute consultation about your parenting arrangement.
Frequently Asked Questions
As of March 2021, Ontario family law uses "decision-making responsibility" (who makes major decisions for the child) and "parenting time" (when the child is in each parent's care) instead of "custody" and "access."
No. Parents can share decision-making responsibility equally while having very different parenting time schedules, or one parent can have sole decision-making while sharing parenting time roughly equally. The two concepts are legally independent.
There is no fixed age. A child's views and preferences may be considered based on their age and maturity, but courts do not treat a child's preference as determinative, particularly for younger children.
Not directly. Income affects child and spousal support, not parenting time. However, a parent's ability to provide a stable home environment can be a relevant factor among many others.
Yes, in serious circumstances — such as documented family violence, substance abuse posing a risk to the child, or abandonment — but this is uncommon. Courts generally favour maintaining a child's relationship with both parents unless there is a genuine safety concern.
A parenting coordinator is a neutral professional who helps parents resolve day-to-day disputes about parenting arrangements without returning to court for every disagreement, often used in high-conflict situations.
Yes, if there has been a material change in circumstances since the last order or agreement — such as a relocation, a change in the child's needs, or a significant change in either parent's situation.
Grandparents do not have automatic parenting rights, but they can apply to the court for parenting time or contact if it is in the best interests of the child, particularly where a parent is unreasonably denying contact.