Children: Decision-Making Responsibility and Parenting Time
In Canada, the law says that in most cases both parents have the right to raise their children and to make decisions about how the children are cared for.
If you and your child’s other parent separate or do not live together, you must make plans about your child’s daily life and where your child will live. You can make these arrangements with or without the help of lawyers and the Court.
If you cannot agree, either parent can apply to the Court for an Order for decision-making responsibility, or parenting time. You must apply for an order for decision-making responsibility or parenting time in the city or town where your child usually lives.
Orders about decision-making, parenting time or contact can be changed if there is a significant change in circumstances that affect your child’s best interests.
What is decision-making responsibility?
Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including decisions about health, education, culture, language, religion and spirituality, and important extra-curricular activities. This used to be called custody.
What is parenting time?
Parenting time means the time a child spends in the care of a parent and may include time during which the child is not physically present with the parent. This used to be called access.
Parents have the right to parenting time with their children. This also includes the right to ask questions and be given information about your child’s well-being, including their health and education.
What is Contact?
Contact means the time a child spends in the care of a person other than their parent or step-parent, such as a grandparent or other relative.
As with parenting time, the child does not have to be physically with the person during that time.
Who has decision-making responsibility?
Both a child’s parents have the right to decision-making responsibility for the child. But, if the parents of a child live separately from one another, and one parent has agreed to or accepted this living arrangement, the parent who lives with the child has decision-making responsibility, even without a court order. In this situation, the parent who does not live with the child does not have the right to have decision-making responsibility for the child until a court order or separation agreement gives them that right.
A court can decide that decision-making responsibility or any part of it should be given to more than one person.
These decisions are different from day-to-day decisions. The person who has the right of taking care of the child at any particular time has the right to make day-to-day decisions during that time.
1. Sole Decision-Making Responsibility
If a court order or separation agreement states that you have sole decision-making responsibility then you have the right to make important decisions about the child’s well-being including decisions about health, education, culture, language, religion and spirituality, and important extra-curricular activities.
2. Joint Decision-Making Responsibility
If you and another parent have joint decision-making responsibility you have to make the decisions together. If they know you do not get along or if there was abuse in your relationship, the court would be unwilling to make an order for joint decision-making responsibility.
Divided Decision-Making Responsibility
The court may order that you have the ability to make decisions by yourself about one part of decision-making and that another parent has the ability to make decisions about another part. For example, you may have decision-making responsibility over education and the other parent may be given decision making-responsibility over healthcare. In this case, you would be free to decide for example what school your child attends and the other parent would be free to select your child’s doctor.
Even if a court decides that you do not have decision-making responsibility for your child, if you have parenting time with the child, you have the right to ask questions and be given information about your child’s well-being, including about their health and education.
Types of parenting time and contact orders
A court may order where your child may live and they may include a schedule for parenting time. The schedule can include equal parenting time or may say that more parenting time is given to one parent. There may be a regular schedule and a holiday schedule for specific holidays and vacations. As an example, some parents have more parenting time during the summer than during the school year.
If you do not get along with your child’s other parent, you can ask the Court for an Order that sets out the terms of their specified parenting time or contact, such as when, how long and how often the visits will be. If your relationship is or was abusive, you can ask the Court to set dates and times for visits so that you do not have to talk to the other parent about these details.
Parenting time can also change over time. A court may order that one parent has limited time with the child at first, but gradually has more parenting time as the child grows older. This type of schedule gives you and your child a chance to get to know and trust the other parent. This may be best in situations where the child has spent little time with the other parent or the separation occurs when the child is very young.
Supervised Parenting time or contact
The Court can order that parenting time or contact must be supervised if there are concerns about the child’s safety if they are left alone with the other parent. The person supervising the parenting time could be a friend or family member if you and the other parent can agree, a professional such as a social worker, or through a supervised access centre. You should be aware that supervised access centres can be closed at times as a result of lockdowns arising from the COVID-19 pandemic.
The court may also order that exchanges be supervised if there are concerns about safety if the parents do the exchanges without someone else being present. This means someone else must be present during the visit or during the exchanges. The exchange could also take place at a safe location such as a police station.
In very rare cases, a parent will be denied any parenting time with their child. This will only happen if the Court believes the child will be physically or emotionally harmed by that parent, and supervised access will not provide enough protection.
It is very important that you follow agreements and Court Orders. If you have an agreement or Court Order for decision-making responsibility, parenting time, or contact, you must follow it. Either you or the child’s other parent can ask the Court to make an order that the police can enforce the Order. If you do not have this kind of Order, the police may be reluctant to enforce an Order.
If you do not allow the other parent to see their child as set out in the Order, the Court could make significant orders against you, and could possibly change the decision-making responsibility or parenting time orders.
The law does allow you to refuse parenting time if you are afraid for the child’s safety. If you think your child is at risk and you refuse to allow the parenting time or contact to proceed, get legal help right away. In an emergency, call the police at 911.
Sometimes, one parent will fight for parenting time and then not show up to see the child during the ordered parenting time. This can be upsetting for the child but, unfortunately, there is nothing the law can do to force the parent to visit. If this happens on a regular basis, keep track of all missed or shortened visits. You may be able to use this information to go back to Court and ask for the parenting time Order to be changed.
The courts have said that parenting schedules and orders should be followed even during lockdowns as a result of the COVID-19 pandemic. If you and the other person or parent entitled to parenting time or contact agree to change a schedule to reduce exchanges, you could change the schedule temporarily.
How do courts decide about decision-making responsibility, parenting time and contact
In deciding who the child should live with, who should have decision-making responsibility, and what the schedule for parenting time or contact will be, the court must consider the child’s interests. The court will consider the child’s physical, emotional, and psychological safety, security, and well-being.
The court will consider issues like:
- The child’s needs, including their age;
- The relationship the child has with their parents, siblings, grandparents and other people who play an important role in their life;
- The parent’s willingness to support the child’s relationship with the other parent,
- The history of how the child has been cared for;
- The child’s wishes, with more weight placed on older children;
- Cultural, spiritual, religious upbringing and languages including indigenous heritage;
- Plans for the child’s care;
- The ability and willingness of the parent to meet the child’s needs;
- The ability and willingness of the parents to cooperate and communicate on matters affecting the child;
- Family violence and its impact on the ability of a parent to meet the needs of the child; and
- Any civil or criminal proceeding, order, other measures or situations that might affect safety and security of the child
Family law Courts also look at what arrangements already exist. This is called the status quo. If the child’s living arrangement is working well, the Court may not want to make big changes.
If you want to make an Application to the court for decision-making responsibility, parenting time or contact, an Affidavit Form 35.1 must be filled out and the issues above should be considered and outlined. A person applying for a contact order also has to provide a recent police records check and obtain a report from every children’s aid society in which they have lived. You should speak with a lawyer before going to court for decision-making responsibility, parenting time or contact.
If you and another parent come to an agreement about the details of a parenting schedule and decision-making responsibility, the court has to include this agreement unless they feel it is not in the child’s best interest. If the agreement is not in the child’s best interest, the court can change it.
What is family violence?
Family violence means any conduct by a spouse, parent, or member of a household towards another spouse, parent or member of a household that is violent or threatening or that shows a pattern of coercive and controlling behaviour or that causes the other person to fear for their own safety or for that of another person. Family violence includes:
- Physical abuse or forced confinement (but not if you are protecting yourself);
- Sexual abuse;
- Threats to kill or cause physical harm;
- Harassment, including stalking;
- Failure to provide necessaries of life;
- Psychological abuse;
- Financial abuse;
- Threats to kill or harm an animal or damage property; and
- The killing or harming of an animal or the damaging of property.
Family violence does not have to be a criminal offence to be seen as family violence.
In the case of children, family violence means the direct or indirect exposure to the conduct.
How does family violence factor into the court’s decision?
In making orders about decision-making responsibility, parenting time and contact, the court has to consider any family violence, specifically relating to the impact on the ability of a parent to meet the needs of the child and whether it is appropriate to make an order that would require cooperation on issues affecting the child.
The court will consider various issues including:
- the frequency and seriousness of the violence,
- patterns of coercive and controlling behaviour,
- who the violence is directed at,
- whether the child or other family members are safe,
- whether the violence causes the child or family member to fear for their safety or the safety of another person, and
- whether the person has taken steps to prevent further violence and improve their ability to care for the child.
The court may also make specific orders if they feel it is necessary including supervised parenting time, orders prohibiting specific behaviour, and orders about communication.
Moving with your child
A difficult issue that can arise when parents do not live together is whether a parent who has parenting time, or decision-making responsibility, can move the child out of the city, the province or even in some cases, out of the country. You may want to move to be closer to other family members for support, or for a job opportunity. Such a move may have an impact on your child’s relationship with their other parent who has parenting time or other individuals who have contact with the child. If there will be a significant impact on your child when you move, the law says this is called a relocation.
Before you relocate with your child, you must give at least 60 days’ notice of the proposed relocation to anyone else who has parenting time, decision-making responsibility or contact with your child. The notice must be in writing.
The notice you give must include the moving date, the new address and contact information, and a plan for how parenting time, decision-making responsibility and contact can take place after your move.
After you give notice for your proposed relocation, the people who will be affected by your relocation have 30 days to tell you that they do not agree and must give the reasons for not agreeing in writing.
If you do not receive a written objection within 30 days of providing notice of the relocation from anyone who has parenting time, decision-making responsibility, or contact with the child, you may relocate with your child if there is no court order that says you cannot relocate. You can relocate if your court order allows you to do so.
Like all decisions dealing with a child, the Court will decide whether to allow the move based on the best interests of the child. When determining the best interests of the child, the court will consider many factors, including issues like:
- the reasons for the relocation,
- the impact the relocation will have on the child,
- the amount of time spent with the child by each person who has parenting time,
- whether you have given proper notice of the move or have complied with provincial family laws, orders, arbitral awards or any agreements you may have, and
- the reasonableness of your proposal for parenting time and decision making-authority.
If you are at risk of family violence, it is possible for the court to change the notice requirements.
If you are allowed to move with your child, the Court may change the parenting time schedule to allow for longer visits with another person who has parenting time with your child, or it may decide how costs associated with facilitating parenting time can be divided depending on the travel cost.
In some cases, the Court may say you are not allowed to move with your child, if the other parent does not agree.
A change of relocation is different than moving your child’s residence locally. If you choose to move your child’s residence locally, you must give the new information to any other person who has parenting time, decision making responsibility, or contact with the child because these persons will need to know where to pick-up or drop-off the child. The notice you give must include, the date of your move, your new address and contact information.
If you are at risk of family violence, the court may choose not to follow the notice requirement or can change it.
Travelling with your child
In most cases if the other parent has decision making-responsibility or parenting time, you cannot take the child outside Canada without the other parent’s permission. That means if you want to travel with your child, you will need to have your agreement outlining the parenting-time and a letter of consent from the other parent that gives permission for the child to leave Canada. The letter should be notarized by a lawyer.
When you leave Canada or try to enter another country, you should expect border officials to ask you to prove that the child’s other parent has agreed to the child’s travel.
Child abduction outside of Canada
Sometimes, one parent takes the child outside Canada without the other parent’s permission. This is very serious. This is called child abduction. Child abduction is a serious crime in Canada.
There is no way to be absolutely sure your child is never taken outside of Canada without your permission, but there are some things you can do to help protect your child. Make sure that your parenting time Order or agreement:
- is as clear and detailed as possible;
- specifically says that the child cannot travel outside of Canada without your permission.
The Order can also say that you or the Court must keep the child’s passport or the other parent’s passport.
What to do if your child has been taken out of Canada without permission
If you think that your child has been taken out of the country without your permission, you should:
Call the police right away. The police will send an alert to border officials in Canada and the country where the other parent might take your child.
Call the Consular Affairs Bureau right away, toll-free at 1-800-387-3124 or 1-800-267-6788. Their office is open 24 hours a day, 7 days a week.
If your child is taken outside of Canada without your permission, you should also talk to both an immigration lawyer and a family law lawyer right away.
The main law that may be able to help you get your child back is the Hague Convention on the Civil Aspects of International Child Abduction. It is an international treaty signed by many countries. The countries who signed the treaty agree that they will work together with one another to find and return children who have been illegally moved from one country to another.
If your child is taken to a country that did not sign the Convention, it will be much harder to get your child back to Canada. If this happens, you can fight for decision-making responsibility by using the laws of the country where your child was taken. You can also try to negotiate with the abductor and their family.
For more information about how to prevent an international abduction, read International Child Abductions: A Guide for Affected Parents. This booklet was produced by Global Affairs Canada. It also says what to do if your child is taken out of Canada without your permission. You can order a copy from Global Affairs Canada or read the manual online at https://travel.gc.ca/travelling/publications/international-child-abductions .
Child abduction within Canada
If your child has been abducted to another province within Canada without your permission, in most circumstances, you will have to make an application for a parenting order at the court in the province where your child lived before they were wrongfully removed.
Family dispute resolution process
Each parent must always exercise their parenting time or decision-making for the child in the best interests of the child.
If you are involved in a legal dispute with your child’s other parent, you have a duty to protect your child from conflict between the two of you, as much as possible.
You must also try to settle any conflicts through dispute resolution processes other than court. These processes can include negotiation or mediation.
In situations where there is family violence or a power imbalance between you and your child’s other parent, dispute resolution processes are not always appropriate. You should tell your lawyer about any abuse or violence or if you are afraid of your child’s other parent.