Child Custody and Parenting Time in Ontario: A Practical Guide

The language of child custody in Ontario has changed significantly in recent years. Understanding the current framework is essential for any parent navigating a separation or divorce.

The New Legal Framework: Decision-Making and Parenting Time

Under the amended Divorce Act (effective 2021), Ontario family courts no longer use the terms “custody” and “access.” These have been replaced with:

• Decision-making responsibility: The authority to make significant decisions about a child’s life — education, health care, religious upbringing, and extracurricular activities.
• Parenting time: The time a child spends with each parent.

This change reflects a focus on parental responsibilities rather than ownership-like concepts.

What Is Decision-Making Responsibility?

Sole Decision-Making

One parent has the authority to make all major decisions for the child without requiring the other parent’s agreement. This does not necessarily mean the child lives primarily with that parent.

Joint Decision-Making (formerly “joint custody”)

Both parents share authority over major decisions. This requires meaningful communication and cooperation between the parents. Joint decision-making is common where both parents are actively involved in the child’s life and can communicate effectively.

Important: Joint decision-making does not mean equal time. A child can live primarily with one parent while both parents share decision-making authority.

How Is Parenting Time Determined?

Parenting time arrangements are highly individual. Common arrangements include:

• Primary residence with one parent: The child lives mainly with one parent, with regular scheduled time with the other.
• Week-on/week-off: The child alternates weeks between each parent’s home.
• 2-2-3 rotation: The child alternates in a 2-day/2-day/3-day pattern.
• Customized schedules based on work hours, school schedules, and the child’s activities.

What Does the Court Consider?

The paramount consideration is always the best interests of the child. Specific factors include:

• Each parent’s relationship with the child
• Each parent’s ability to meet the child’s physical, emotional, and developmental needs
• The child’s own views and preferences (considered in proportion to age and maturity)
• Each parent’s willingness to support the child’s relationship with the other parent
• History of family violence or abuse
• Stability of each parent’s home environment
• The child’s need for continuity and consistency

What If a Parent Wants to Relocate?

Relocation — particularly international relocation — is one of the most contentious areas of family law. Under the Divorce Act, a parent who wants to relocate with a child must give 60 days’ written notice to the other parent.

If the other parent objects, the relocating parent must bring a court application. The court will consider whether the move is in the child’s best interests.

International relocation to China is treated with particular seriousness. China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Once a child is in China, return to Canada cannot be enforced through the Hague framework.

What If I’m Worried My Spouse Will Take the Children to China?

This is an emergency situation. Contact a lawyer immediately.

An Ontario court can issue a Non-Removal Order prohibiting a parent from removing a child from Ontario (or Canada) pending resolution of the parenting issues. Passports can be seized. The child’s name can be placed on the RCMP’s watch list.

These steps must be taken before the child leaves. Once the child is in China, your legal options are significantly more limited.

Practical Advice

Parenting arrangements are one of the most emotionally charged issues in any separation. Whatever the outcome, the process will go more smoothly if both parties can focus on what truly matters: the child’s well-being and stability.

Document your involvement in your child’s daily life. Be cooperative where possible. Avoid using children as messengers or pawns in the adult dispute.

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This article was written by Miao He (何淼), Ontario lawyer (LSO #83315K) and China-licensed lawyer, focusing on family law for the Chinese-Canadian community in the GTA.