Types of Parenting Agreements
Ontario Parenting Time & Decision-Making Responsibility Information
Given the recent changes to Ontario’s Children’s Law Reform Act, parenting agreements will refer to the terms parenting time and decision-making responsibility in cases where the parents were never married or have chosen to separate rather than pursue a divorce. This is applicable to both married and non-married parents, whether or not they cohabitated. These same terms of parenting time and decision-making responsibility will apply to the parents of a child who were married and have since divorced or are pursuing a divorce.
Different Types of Decision-Making Responsibility
Sole decision-making responsibility means that one parent retains the right to make fundamental decisions regarding the upbringing and wellbeing of the child. In this scenario, the non-decision making parent may express an opinion on important issues, and retains the right to be informed of all major decisions, but the parent with decision-making responsibility has the right to make all final decisions.
Joint decision-making responsibility refers to a relationship where both parents share an equal responsibility for decision-making. A key factor to consider in requesting joint decision-making responsibility is that parents should be able to cooperate in order to serve the best interests of their children. This means parties must have the ability to communicate effectively, and be willing and able to set aside conflicts when faced with important parenting decisions. If you and your former spouse or partner are unable to co-parent constructively, a court is unlikely to grant joint decision-making responsibility.
In split decision-making responsibility situations, both parents have sole decision-making responsibility of one or more of the children. For example, daughters of the marriage may live with the mother, while sons of the marriage reside with the father. This type of decision-making responsibility arrangement is rare, in that courts are not inclined to separate siblings during the process of separation and divorce. Where split decision-making responsibility has been ordered, it is usually because the children are old enough to express an opinion about which parent they wish to live with, and have that opinion given considerable weight by the court.
The term shared custody is often confused with joint decision-making responsibility. In reality, shared custody is a type of parenting time arrangement and does not have anything to do with which parent has legal decision-making power. Shared custody occurs when each parent has the children for at least 40% of the time – in other words, the child’s time is split between the parents roughly equally. Parents can have shared custody whether or not they also have joint decision-making responsibility (joint decision-making power). Shared custody relationships can have a particular impact upon child support, as shared custody arrangements are treated differently under the Child Support Guidelines.
Decision-making arrangements do not have to fit perfectly into one of these models. There is room for compromise and for solutions that fit the parties’ individual circumstances. For example, some parents with joint decision-making responsibility choose to elect one caregiver as the primary decision-maker regarding educational matters, while the other maintains control over decisions surrounding religious practices. These types of options can be documented by your Ontario family lawyer in a separation agreement and may help to negate some common sources of conflict.
Different Types of Parenting Time under the Children’s Law Reform Act
Parenting time means the right to spend time with your child, and includes the right to make inquiries, and to be given information as to the health, education, and welfare of your child. Parenting time refers to time spent parenting a child, but does not encompass the right to make fundamental decisions about the child’s upbringing, which is a right that comes with decision-making responsibility. For example, a parent with parenting time may request a copy of a school report card or meet with a child’s teacher, but cannot make major decisions regarding education such as moving the child to a different school; these decisions are the right of the parent with decision-making responsibility.
Parenting time schedules may be “fixed” (the parent with parenting time has the child on certain specific days and times) or “open” (parenting time schedule is flexible and to be determined by the parties), depending on the needs of the family. For example, a parent’s shift work may prevent a fixed bi-weekly parenting time schedule; however, a more open order or agreement for parenting time of “four overnight visits per month” may help to alleviate conflicts over scheduling.
Supervised parenting time involves time spent with a child under the supervision of another party, such as a relative or social worker, or at a supervised parenting time centre. Supervised parenting time is only ordered in situations where there is concern about the safety or wellbeing of the child, for example where there is a history of substance abuse, domestic violence, or parental alienation. Supervised parenting time is a mechanism to allow the child to spend time with a parent and at the same time ensure the safety of the child.
When supervised parenting time is ordered, it is generally done only on a temporary basis. If the parent demonstrates during supervised parenting time that their visits are beneficial to the child, and the parent respects the terms of the parenting time order, they can often progress to unsupervised parenting time visits of gradually increasing lengths of time.
Orders for no parenting time occur only in the most extreme cases involving circumstances such as proven child abuse and/or neglect, or where a child’s safety cannot be protected in a supervised parenting time setting.
Parenting Agreements under the Divorce Act
If you and your former spouse have already obtained a divorce or are in the process of pursuing a divorce, then the Divorce Act will apply to your matter and parenting agreements will be expressed in terms of parenting time and decision-making responsibility. In 2020, the Divorce Act was amended to refer to parenting time and decision-making responsibility instead of custody and access in order to put the focus on the children involved.
Parenting time refers to the period during which an individual is primarily responsible for the child, including when the child is in school or daycare. Each spouse has the sole authority to make the day-to-day decisions affecting their child during their parenting time. Section 16.2(1) of the Divorce Act allows the court to allocate parenting time according to a schedule.
Equal parenting time is not presumed but rather, as with decisions regarding decision-making responsibility and contact, the primary consideration is the child’s physical, emotional and psychological safety, security and well-being.
Decision-making responsibility is the responsibility to make important decisions about the child’s well-being, including the child’s health, education, culture, language, religion and spirituality and significant extracurricular activities. Section 16.3 of the Divorce Act allows the courts to allocate that decision-making responsibilities be shared between spouses or allocated to just one spouse or other person who currently stands, or intends to stand in the place of a parent.
Courts have the option of separately allocating different decision-making responsibilities to each parent when ordering joint-decision-making responsibility is not appropriate.
Contact an Ontario Child Decision-Making Responsibility and Parenting Time Lawyer to Learn More
For information on creating a parenting plan setting out your and your former partner’s preferred decision-making responsibility and parenting time arrangements, see our article: Parenting Plan. If you and your partner end up in court litigating your parenting time or decision-making responsibility dispute, you should be aware that the court will make any decision in light of the best interests of the child or children. See our article: Best Interests of the Child for more information.
We also welcome you to call our offices at (905) 581-7222 to arrange a confidential consultation with one of our lawyers.