Parenting time (previously access) and decision-making (previously custody) are dealt with under the Federal Divorce Act and the provincial Children’s Law Reform Act. These terms were changed on March 1, 2021. The aim of these changes is for the law to be more child-focused and to emphasize the role of parenting in the parenting arrangements. The neutral wording emphasizes family mediation, where both parties in a separation or divorce will still be caring for the child and have rights with regards to the child.
Decision-making responsibility, previously deemed ‘custody’, is the right to make significant and important decisions about the child/ren. This can include decisions regarding the child’s education, extra-curriculars, health, religion, language, etc. Any individual seeking a parental role in the child’s life can apply for a parenting order, however, if they are a non-spouse, they would require leave of the court. Decision-making responsibility could be allocated to a single individual, to both spouses, or to another individual who intends to stand in the place of a parent to the child.
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Methods of Decision Making
There are various decision-making orders the court will grant. This includes sole decision-making, joint decision-making, and decision making where each parent has final say on certain issues:
- Sole decision-making grants the parent the right to make important decisions without the involvement of the other parent.
- Joint decision-making shares this right of making and remaining involved in important decisions about the child/ren between the parents. It is granted where the parents are able to co-parent and communicate.
- As opposed to the last option where parents consulted each other, the court may allocate responsibility of some elements, such as education and language, to one parent and others, such as health and religion, to the other.
- Whichever the court decides on will be based on the best interests of the child/ren.
Parenting time, which used to be referred to as ‘access’ is the amount of time each parent spends individually with their child. Arrangements for parenting time can be agreed upon in parenting plans, family mediation reports, separation agreements, or court orders. It is always best to try to resolve parenting time issues without seeking the assistance of the court, however, in some circumstances this may not be possible. If that is the case, an application can be brought to the court for this purpose.
Call our separation lawyers for a consultation today and we can explain and walk you through the details of family mediation, step-by-step. If that is too much for you at this time, we can at least give you an idea of how the family law system works and how we can help you navigate, what can seem like a very complicated process for people experiencing this very difficult time.
Best Interest of the Child – How Parenting Time is Determined:
The court will look to the best interests of the child when determining decision-making authority and parenting time. This is left to the judges to decide on a case-by-case basis. The courts look to the circumstances around the child, the needs of the child, the means of the parents, and any other considerations. They also consider the age, capacity, and maturity of the child (Kanthasamy v. Canada (Citizenship and Immigration),  S.C.J. No. 61 at para. 35, 2015 SCC 61 (S.C.C.)). Parenting time may be denied if it is in the best interests of the child to do so. A minor disruption to the child’s normal routine is not sufficient to deny parenting time, as it is within the child’s best interest to maximize the contact with both of their parents.
Supervised Parenting Time:
A court can order that parenting time be supervised or unsupervised. Supervised parenting time is usually ordered when there are concerns for the safety of the child or the parent. This can be agreed upon by the parents or be ordered by the court. Here, the parenting time would be conducted with someone else present. This additional person can be a friend, family member, professional, etc., depending on who the parents agree to or who the courts feel would supervise best. There are also Supervised Access Centres who provide this service. Supervision is meant to be a short-term requirement. It should not be enforced to punish the parent but only to protect the child from any risk of harm (Laskey v. Laskey,  O.J. No. 3183 (Ont. Gen. Div.)).
Parenting Time Schedules:
There are a variety of ways to divide how each parent spends time with the children. Such schedules should be based not only to maximize each parent’s time with the children but also the age of each child and any particular needs. Parenting schedules can range from every other weekend, to one week on, one week off, to two days one parent, two days the other and then three days in a row (to alternate). Schedules also may change over time as the children get older, which is important to keep in mind when determining a parenting time agreement.
As each family’s case is unique and dependent upon a specific set of circumstances it is important to seek the advice of a family lawyer.