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We asked Gabrielle Pop-Lazic, a lawyer with Gelman & Associates, some commonly-asked questions about changes surrounding decision-making responsibility and parenting time in Ontario. Please note that this overview is intended as an introductory look into a legal subject, and is not intended as legal advice. If you are seeking legal advice regarding decision-making responsibility and parenting time or another family law matter, we recommend booking a consultation with an Ontario family law lawyer.
Introduction to Decision-Making Responsibility and Parenting Time in Ontario
There are two pieces of legislation governing what used to be called “custody and access” in Ontario. The first is the Divorce Act, federal legislation that oversees matters of parenting time and decision-making responsibility in correlation with a divorce. There is also provincial legislation in Ontario called the Children’s Law Reform Act, which would apply if the parents were never married to one another.
Shift From “Custody” and “Access” to “Decision-Making Responsibility” and “Parenting Time”
The goal, in family law, is to reduce and eliminate conflict between separating parents. Therefore, the language around what used to be called “custody and access” is changing: it is now referred to as “decision-making responsibility and parenting time.” The terminology of “custody and access” may be seen as suggesting a hierarchy between the parents. By changing the language to “parenting time,” both parents’ time with the children is recognized as significant and important to the children.
The old term “custody” covered two major aspects:
- Who gets to make major decisions for the children?
- Where do the children live?
The collaborative language of “decision-making responsibility” addresses the same aspects as “custody.” Under a shared decision-making regime, there has to be discussion, consultation, and agreement between the parents.
Major parenting decisions include:
- Religious upbringing
- Other decisions pertaining to the child’s general health and well-being
“Parenting time” replaces the old concept of a parent’s visitation or access. Historically, in situations where a child was primarily cared for by one parent, the other parent was relegated to the role of an “access” parent, with visitation rights. The change in the law now emphasizes the fact that separated parents are still parents, and that the time each spends with the child is equally significant.
Enforcement of Parenting Time and Decision-Making Responsibility Orders under the New Legislation
Some of the most difficult conflicts in the family courts involve parenting time, such as a parent who is not being permitted to spend time with their child. The only mechanism that the court has for enforcement is to make court orders. One way to address a chronic breach of a parenting order is to bring a motion for contempt. Essentially, this is a motion asking the court to order a remedy. That remedy can be a monetary fine, or can go to the extent of changing the parenting arrangement.
If the primary caregiver parent isn’t allowing the child to have time with the other parent, for example, the court may reverse that parenting arrangement and give the other parent the role of primary caregiver. This recognizes that it is in the best interests of the child to have a parent who encourages them to have a relationship with their other parent.
In contempt motions, the court is more interested in re-establishing the relationship between the parent and the child than in punishing the parent who has not allowed that relationship to continue. Often, when one parent brings forward a motion of contempt to enforce a parenting order, the first thing the court will do is give the other parent an opportunity to “purge the contempt” – to correct the behaviour that would otherwise lead to a contempt finding. This can create a frustrating and expensive process for those trying to enforce contempt orders against a parent who is intransigent in their desire to violate them.
The Need for Ongoing Support and Resources for Families Navigating Decision-Making Responsibility and Parenting Time Issues
Families going through the process of separation have likely never done this before, and do not know how best to proceed. In our initial consultation with new clients, we typically offer an overview of the legal issues they should understand. As part of that education, there has to be a recognition that there is a relatively well-defined range of possible outcomes.
Parents may say or do things inadvertently that may have an impact on their children. Often, when we see negative consequences, it is not because of alienation or an active intention to harm a relationship between a parent and their child, but arises out of simply not knowing what to do. Education and resources may help parents not only communicate with their children, but also to manage conflicts that arise with the other parent.
The Future of Decision-Making Responsibility and Parenting Time in Ontario
One issue that has been discussed and debated is whether shared parenting should become the default in matters of decision-making responsibility and parenting time. There are positive and negative consequences to a shift such as this. The law tries to protect children from circumstances where the parents are unable to collaborate, in which case shared parenting may not be the best option. For the time being, shared parenting is not the presumptive outcome in Ontario.
If you have any other questions concerning decision-making responsibility and parenting time in Ontario, or would like to discuss the particulars of your specific case, contact us to schedule a consultation with Gelman & Associates today.