Table of Contents
1. What do we mean by “custody” in Ontario today?
In the past, many separation-law articles and even people used the words “custody” and “access”. Today, for separation or divorce involving children in Ontario, the more accurate terms are:
Decision-making responsibility
Who decides major issues about the child (education, health, religion, major activities).
Parenting time
When the child spends time with each parent, how much time and the schedule.
Residence/living arrangements
Where the child primarily lives, though that’s only one part of the picture.
Contact
Sometimes used to refer to time a child spends with a non-parent (e.g., grandparent).
By using the updated terminology, you focus more on the child’s needs and activities rather than simply “who owns the child” (which is not how the law works).
2. Key legal terms: decision-making responsibility, parenting time, residence & contact
Decision-making responsibility
This term refers to the authority and duty to make major decisions about a child’s upbringing. That includes decisions about: education, health care, religion/spirituality, significant extra-curricular activities, and sometimes major life issues. It’s not about everyday decisions like “What time does my child go to bed tonight?” which are often handled by the parent the child is with at the time. You're talking about the big issues.
Decision-making responsibility can look like:
- One parent has sole decision-making responsibility
- Both parents share joint decision-making responsibility
- The responsibility is split by topic (e.g., Parent A decides schooling, Parent B decides religion)
Parenting time
Parenting time refers to the schedule of time a parent spends with their child. It may include times when the child is not physically with the parent (for instance, when the parent is responsible day-to-day, even if the child is at school). Examples of parenting time arrangements: every other weekend, week-on/week-off, split weeks, holidays and special occasions, etc.
Residence/child’s living arrangements
Where the child lives is an important factor, but it is not the same as decision-making responsibility or parenting time on its own. A child’s primary residence might be with one parent, but they share major decision-making. Or the child could live half the time with each and one parent might have sole decision-making. The law allows for many combinations.
Contact
This term is used when someone other than the parent seeks rights to spend time with the child. For example, a grandparent or other relative may ask for a “contact” order. The focus remains the child’s best interests.
3. The legal standards: child’s best interests & relevant factors
When parents cannot agree, the court steps in and makes decisions about decision-making responsibility and parenting time. The governing principle is the best interests of the child.
Here are some of the key factors that the court will consider:
The child’s physical, emotional and psychological needs, given the child’s age and stage of development.
The nature and strength of the child’s relationship with each parent, and other important persons (siblings, grandparents, etc.).
Each parent’s willingness and ability to support and encourage the child’s relationship with the other parent (unless such contact is unsafe).
The history of care of the child (who has been doing what, where the child has been living, stability).
The views and preferences of the child, when they can reasonably be ascertained (age, maturity, etc.).
The ability and willingness of each parent to meet the child’s needs.
Where cultural, linguistic, religious or Indigenous background is relevant, how that affects arrangements.
Any history of family violence, child abuse or neglect, or risk to the child’s safety and security.
Important note: There is no automatic presumption in Ontario that equal time or joint decision-making is always best. The arrangement must fit the child’s needs and situation.
4. Types of arrangements you’ll often see
Here’s a breakdown of common parenting arrangements in Ontario and what they mean:
Sole decision-making & primary residence
One parent is given the responsibility to make major decisions, the child lives primarily with them, and the other parent has parenting time (but not decision-making). This might be appropriate when one parent cannot cooperate, there are safety issues, or the child has been living largely with one parent already.
Shared (joint) decision-making
Both parents share decision-making responsibility. They must work together on major decisions. This works when parents are able to communicate and cooperate. Even if decision-making is shared, the child might still live most of the time with one parent or divide time.
Shared parenting time (or near-equal time)
This is when the child spends a substantial amount of time with each parent. One benchmark is when the child spends at least 40% of their time with each parent (often referenced in the federal Divorce Act context) which can affect child-support calculations too.
Split parenting
Less common: this is when siblings are split between parents (for example one child lives primarily with Parent A and another child lives with Parent B). Because separating siblings is generally discouraged, courts only approve in specific situations.
Supervised parenting/no parenting time
If there are serious safety concerns (domestic violence, risk to the child, substance abuse), the court may order parenting time that must be supervised or even deny parenting time altogether.
Hybrid or flexible arrangements
Parents can craft very specific parenting plans: week-on/week-off, alternating summers, holidays split, special occasions, travel rules, etc. An open or “reasonable” schedule may also be used where parents cooperate and allow flexibility.
5. How to reach an agreement: parenting plans, mediation & litigation
Try an agreement first
When parents can agree, the process is quicker, less expensive and less emotionally damaging than going to court. A parenting plan sets out how parenting time and decision-making responsibility will be shared. It can be informal, part of a separation agreement, or part of a court order.
What a good parenting plan covers:
- Weekly schedule: weekdays, weekends, school holidays, summer break
- Holidays, birthdays, travel, new partners
- Decision-making roles: who decides what, how co-parents will communicate
- Exchange logistics: drop-off/pick-up, transportation
- Dispute resolution: how to manage disagreements later (mediation, parenting coordinator)
- Review clause: how often to revisit the arrangement as children grow
Mediation / collaborative law
If parents cannot reach an agreement on their own, mediation or collaborative family-law processes provide a structured environment to negotiate without immediate court confrontation. These are often less adversarial, keep control with the parents, and result in more durable parenting arrangements.
When a court becomes necessary
If agreement fails or isn’t appropriate (for example, safety issues, one parent refuses to cooperate), either parent can ask the court for a parenting order. The court then decides decision-making responsibility, parenting time and residence based on the best interests of the child.
The process involves:
- Filing the correct forms
- Sworn affidavits and evidence about the child’s needs, parents' past caregiving, and safety issues
- Possible investigations or reports (Office of the Children’s Lawyer, social-worker assessments) if the court orders them.
Why agreement is usually better for the child
- Children benefit from stability, fewer court battles, and less conflict
- Parents maintain more control over arrangements
- Lower cost, faster resolution
- Better chances of co-operation and fewer future disputes
6. Filing court forms: when, how and what to expect
If you cannot reach an agreement and you want the court to decide, here are the key steps for Ontario.
Which court form?
In Ontario, for parenting issues (decision-making responsibility, parenting time, contact), the relevant forms are Form 8: Applicant, Form 35.1: Affidavit (Decision-making Responsibility, Parenting Time, Contact). You’ll also likely need:
- a Notice of Motion (if changing an existing order)
- other supporting forms as per Ontario’s Family Law Rules and local court requirements.
Where to file
You file at the Family Court branch of the Ontario Court of Justice or the Superior Court of Justice, depending on the issues involved in a case, in the region where the child lives. Many courthouses now have digital portals (check local requirements).
What the process looks like
- Prepare your forms (fill carefully, accurately).
- Application: set out facts about caregiving, the child’s needs, your proposal, and any safety issues.
- Serve the other parent after issuance of Application (and possibly file proof of service).
- Attend a first appearance/interim order hearing (Motion): the court may issue a temporary order while the full case moves on.
- Prepare for final hearing/trial (if necessary): evidence, witnesses, child’s views, reports.
- Receive the final order that sets decision-making, residence, parenting time and possibly child support.
Interim vs final orders
An interim (temporary) parenting order may be made to cover the period while the case proceeds. Final orders settle the long-term situation. A temporary order can be changed later if circumstances change.
Costs and representation
Court filings cost money (court fees). If you’re eligible, you might access services via Legal Aid Ontario for decision-making/parenting time issues. Having a lawyer prepare your documents, collect evidence, and present your case often leads to better outcomes.
7. Safety and family-violence issues: when extra protections are needed
When separation involves domestic violence, abuse, substance misuse, or risk to a child’s safety, courts and parents must treat the issue very seriously.
What the court considers
If there are allegations or evidence of family violence, the court will always ask: is the child safe in this arrangement? The court may order:
- Supervised parenting time (visits in a safe environment)
- No parenting time at least initially
- Specific conditions (monitored exchanges, location restrictions)
- One parent to have sole decision-making responsibility if the other parent poses a risk
What you should do if you’re concerned
- Keep detailed records: police reports, photos, communications, and incidents.
- Seek legal advice early.
- Consider applications for restraining orders or safe-exchange venues.
- If child protection is involved, be aware of additional proceedings.
- Ensure your own and your child’s safety above all.
Why these matters
Arrangements that ignore safety concerns can lead to harmful outcomes for children and parents, and courts will not hesitate to limit parenting time or change decision-making responsibility in those scenarios.
8. Enforcement, variation (changing an order) and relocating with a child
Enforcement of existing orders
If a party fails to follow the parenting order (e.g., denies time, refuses exchanges, doesn’t communicate), you can apply to the court for enforcement. Remedies may include: make-up time, changes to exchange terms, or punitive consequences (in extreme cases).
Variation / changing an order
If there’s a material change in circumstances (child’s needs, parent’s capacity, relocation, etc.), you can apply to vary the parenting order. The court must again consider the best interests of the child.
Relocation with a child
When a parent wants to move with the child (within Ontario, to another province or outside Canada), you must consider how the move affects the other parent’s time and the child’s relationships. Notification and sometimes court approval may be required.
Tips for modification and enforcement
- Have your original order handy and review it carefully.
- Keep documentation of the changed circumstances.
- Attempt negotiation/mediation first.
- Get legal advice early – these applications often require detailed evidence and court time.
9. Typical timelines & cost considerations
Timelines
- If parents agree quickly and sign a parenting plan, things can be resolved in weeks or a few months.
- If court is required, timelines vary considerably — many months, maybe over a year depending on court backlog, complexity (safety issues, expert reports, child interviews).
- Faster resolution is usually possible when both parents cooperate and there are no safety/relational issues.
Costs
- Agreement-based resolution (mediation, negotiation) costs significantly less than full court litigation.
- Court process includes: lawyer fees, court filing fees, possible expert reports (psychologists, social workers), possible children’s lawyer involvement, travel, and time.
- Ask your lawyer for a fee estimate, what tasks are included, and whether limited-scope/flat-fee options exist.
- Make sure to budget for your time, emotional stress and any delays.
What you can do to reduce costs
- Try to settle early with a clear parenting plan.
- Use experienced counsel who can prepare efficiently.
- Be organized: gather school reports, medical notes, and schedules ahead of time.
- Keep communication constructive (less conflict = fewer hearings).
- Consider alternative dispute resolution (mediation, collaborative law) if feasible.
Common questions (FAQ)
What’s the difference between “custody” and “decision-making responsibility”?
“Custody” is the older term. Nowadays, Ontario uses “decision-making responsibility” to describe who makes major decisions about the child’s life. The idea is to modernize language and focus on parenting roles rather than ownership of children.
Can my child decide which parent they want to live with?
The child’s views are a factor, but there is no automatic age at which the child chooses. The court gives weight to the child’s preferences when appropriate (age, maturity, ability to understand), but will still decide based on the child’s best interests.
Do I need a court order if we agree on a parenting plan?
You don’t always need a court order if you both agree and the plan works. However, having a court-approved order provides enforceability if things go wrong. Many experts recommend obtaining an order to avoid future disputes.
Does child support depend on how much parenting time I get?
Child support and parenting time are distinct issues. While shared parenting time (40%+ with each parent) may affect child-support calculations under the federal Divorce Act, the right to parenting time is not based solely on payment of support.
What happens if one parent moves to another city or province?
Relocation can trigger the need to vary the order. The parent moving must consider how the change affects the other parent’s relationship and the child’s best interests. The court will review the proposed move in light of parenting time, decision-making, and the child’s needs.
How do I change an existing parenting order?
You must demonstrate a material change in circumstances since the original order that affects the child’s best interests. Then you apply to court (or negotiate a new agreement) and ask for a variation. Early legal advice is helpful.
What if the other parent won’t follow the order?
You can apply for enforcement through the court system. Remedies include make-up time, amended exchange arrangements, or even contempt in extreme cases. It’s best to document non-compliance and seek legal advice promptly.
11. Checklist: What you need to do next
Gather basic information: child’s age, school, special needs, usual schedule.
Identify current living arrangements: where does the child live, with whom, and since when?
List major decisions made so far and by whom (education, health, religion, extra-curricular).
Consider what parenting arrangement you believe is best (decision-making + parenting time) and why.
Collect records: school reports, medical records, diary of who has done primary care, any incident reports (for safety).
If you and the other parent can talk, draft a written parenting plan.
If mediation seems feasible, look for a qualified mediator specializing in family law.
If you anticipate court, locate the correct forms (Form 8, Form 35.1 in Ontario) and start gathering evidence.
Assess whether safety/risk issues are present. If yes, act immediately on safety first.
Contact a family lawyer to review your plan or strategy, estimate costs, and get a step-by-step plan.
Set reminders: review the parenting plan every year (children grow and needs change).
Keep communication child-focused: avoid using the child as a messenger, keep records of exchanges.
12. Why you should talk to a family lawyer and how we can help
Especially in children matters, the stakes are high — emotional, relational and financial. Working with a seasoned family-law lawyer in Ontario gives you several advantages:
We help you understand what’s realistic in your region (Toronto, Mississauga, Oakville, GTA, GHTA, Ottawa or elsewhere).
We ensure your parenting plan or court strategy is aligned with the best interests of the child standard and the local court practices.
We prepare the required forms and affidavits accurately, gather the evidence, and persuasively build your story.
If there are safety concerns, we advise on supervised parenting, exchange procedures, or no-contact orders.
We negotiate with the other side or represent you in court, aiming for the best possible outcome for your child and your rights.
We aim to save you time, stress and cost by avoiding unnecessary delays, hearings or mistakes.
Ready to Take the Next Step?
If you’re ready to protect your child’s future, schedule a 30-minute initial consultation with our family lawyer on reduced fees. We’ll review your situation, flag any urgent issues (such as safety or relocation), and map out your options.