Parenting

Family Lawyer Toronto

Parenting and contact orders (Formerly custody & access)

When married or common-law partners separate and there are children involved, parenting is an issue that must be dealt with as quickly as possible. It is just as important for the children, as it is for the parents. Without a Parenting Plan Agreement or court order regarding decision making responsibilities and a parenting schedule (whether fixed or flexible), a lot of confusion and uncertainty can ensue for everyone.

Besides parties that are going through a separation, parents of children who are not cohabiting will also need a parenting plan. Non-parents, such as grandparents for example, who want to ensure they get to spend time with a child can also benefit from a parenting schedule that includes time for the children to be in their care.

Definitions

Some definitions would be helpful to start. These are from the Children’s Law Reform Act which applies to married and unmarried couples, and essentially mirrors the provisions of the Divorce Act.

Decision-making responsibilities

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

  • health,
  • education,
  • culture, language, religion and spirituality, and
  • significant extra-curricular activities.
Parenting time

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time; (“temps parental”)

Parenting Order

“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child; (“ordonnance parentale”)

Contact

“contact” means the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time; (“contact”)

Prior to March 1, 2021, the terms custody and access were used to describe decision-making responsibilities and parenting time. These terms have now been changed.

Before March 1, 2021 After March 1, 2021
Custody Decision-making and parenting time
Access (parent) Parenting time
Access (non-parent) Contact

Every decision that is made regarding a child, can only be made with the best interest of the child as the focal point. What works in the child’s best interests is the only consideration, not the rights of the parents. If a court is required to make a decision relating to parenting, it must consider the physical, emotional, psychological safety, security and well-being of the child. It must consider all factors related to the circumstances of the child including:

  • (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
  • (d) the history of care of the child;
  • (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • (g) any plans for the child’s care;
  • (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
  • (j) any family violence and its impact on, among other things,
    • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
  • (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Generally, both of a child’s parents are equally entitled to decision-making responsibilities with respect to a child, except otherwise provided. This decision-making responsibility must be exercised in the best interests of the child. Where the parents separate and the child lives with one of the parents with the consent of the other parent, the parent who gave the consent or implied consent is now suspended from making decisions for the child until the parents enter into a separation agreement or a court orders otherwise. It is important to know that parenting time is unaffected.

Parenting time

A parent can apply to a court for a parenting order, if the parents are unable to agree to or enter into a separation agreement on the issue.

The court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Many people have interpreted this to mean an automatic entitlement to an equal shared parenting schedule. This is not the law. While in many cases, it would be in the best interest of the child to spend equal time with both parents, there are cases where the best interests of the child is better served by the child spending majority parenting time with one parent.

It may even be in the best interest of the child for a parent to have supervised parenting time to start.

Judges would be the first to admit that court is not often the best process for getting a parenting order and would suggest alternative dispute resolution processes such as mediation or collaborative family law. With these process, you can have a professional such as a social worker or therapist, assist your family in coming up with a parenting plan that works for your family. This can then be incorporated into your separation agreement.

There are various parenting options available but what works in the child’s best interests is not always the easiest to decipher and in many cases, court involvement from the outset may be imperative.

Our lawyers are trained mediators, collaborative family law lawyers and experienced litigators. We have various tools in our toolbox to help families reach a separation agreement that includes parenting time schedules and delineates decision-making responsibilities in the best interests of the child. Where agreement between the parties cannot be reached, we represent you in court, to ensure that the proper parenting arrangements are made for your family because as parents ourselves, we understand just how important this is.

Decision-making responsibilities and Parenting time what is the difference?

Decision making is about making major decisions regarding the child’s wellbeing while parenting time refers to the time a child spends in the care of a parent.

While in a parent’s care, that parent has the authority to make the day-to-day decisions that affect the child. Also, both parents are entitled to receive information relating to the children from the other parent and 3rd party care providers.

Check out our free podcasts on parenting issues:

https://anchor.fm/ap-lawyers/episodes/Episode-9-Fundamental-Series—Decision-making–Parenting-time-e11tikh
https://anchor.fm/ap-lawyers/episodes/Episode-1-Parenting–Divorce-Act-Changes-eu2502

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