Family Law — Ontario
Ontario Child Custody and Parenting Time: Divorce Act, CLRA, and Best Interests (2026 Guide)
The 2021 Divorce Act amendments fundamentally changed the language — and some of the substance — of child parenting law in Canada. Ontario family lawyers must navigate the updated federal Divorce Act (for married parties) and the still-older Children's Law Reform Act (for unmarried parties), while guiding clients through some of the most emotionally charged decisions of their lives.
The 2021 Divorce Act Amendments: What Changed
Divorce Act used terms 'custody' and 'access'; no explicit family violence provisions; maximum contact principle
Divorce Act amendments in force: 'decision-making responsibility' replaces custody; 'parenting time' replaces access; explicit family violence factors; friendly parent provision removed; relocation provisions added (s. 16.8-16.9)
Ontario family courts applying new terminology; CLRA not yet amended to match — lawyers must navigate both statutes depending on marital status of parties
Key change: the 2021 amendments removed the “maximum contact principle” (which previously required courts to give effect to the principle that the child should have as much contact with each parent as is consistent with the child's best interests). This was seen as a change that allowed courts to weight other factors more heavily against a parent who poses risks to the child.
Best Interests of the Child: The Governing Standard
Section 16(3) of the Divorce Act lists the factors courts must consider in determining the best interests of the child. There is no presumption of shared parenting or of either parent being preferred. The list is not exhaustive — courts consider all relevant circumstances.
Each person's ability to care for and meet the child's needs
Nature and strength of the child's relationship with each parent and other significant persons
Willingness of each parent to support the child's relationship with the other parent
History of care of the child
Child's views and preferences (given age and maturity)
Child's cultural, linguistic, religious, and spiritual upbringing and heritage
Any family violence and its impact on the child and parenting ability
Any civil or criminal proceeding relevant to the child's safety and well-being
Plans for the child's care proposed by each party
Geographic location of the parties and impact of any proposed relocation
Parenting Arrangements in Ontario
Sole Decision-Making / Primary Residence
One parent has decision-making responsibility; the child primarily resides with that parent. The other parent has scheduled parenting time (formerly 'access').
When appropriate: Common where one parent has been the primary caregiver, where high conflict limits joint decision-making, or where distance makes shared parenting impractical.
Joint Decision-Making / Shared Parenting
Both parents share decision-making responsibility for major decisions. The child may or may not have approximately equal time with each parent — joint decision-making does not automatically mean equal time.
When appropriate: Works best when parents can communicate and cooperate, live in reasonable proximity, and can agree on major decisions for the child.
Parallel Parenting
Each parent makes day-to-day decisions during their parenting time. Major decisions may be divided by category (one parent decides education, the other medical) to minimize contact. Not ideal but practical in high-conflict situations.
When appropriate: High-conflict separations where parents cannot communicate but neither poses a risk to the child.
Supervised Parenting Time
One or both parents has parenting time only with a third-party supervisor present. The supervisor can be a family member, friend, or professional (e.g., supervised access centre).
When appropriate: Where there are genuine safety concerns: family violence, substance abuse, mental health issues, allegations of alienation, or children who are fearful.
What Goes in a Parenting Plan
A comprehensive parenting plan reduces future conflict by anticipating disputes before they happen. Ontario family lawyers typically draft these as a schedule attached to a separation agreement or court order.
| Plan Element | What to Include |
|---|---|
| Parenting time schedule | Regular weekly/biweekly schedule; school holidays; summer; statutory holidays; birthdays; special occasions |
| Decision-making allocation | Which parent makes major decisions — education, medical, religious — or how joint decisions are reached if disputed |
| Communication between parents | Method (email, app), frequency, response time expectations, no-disparagement clause |
| Child's extracurriculars | Which activities are agreed, cost-sharing, attendance at events by both parents |
| Travel and international travel | Advance notice requirements; consent for travel outside Canada; passport control |
| Right of first refusal | When one parent is unavailable for parenting time, they must offer the time to the other parent before arranging third-party childcare |
| Relocation provisions | Notice period and consent process for any proposed relocation; what happens if one parent moves |
| Dispute resolution | Mediation before litigation; parenting coordinator for ongoing disputes; family arbitrator provisions |
Divorce Act vs CLRA: Which Statute Applies?
The Divorce Act (federal) applies only when the parties were married. Applications are made to the Ontario Superior Court of Justice. The Children's Law Reform Act (CLRA, provincial) applies when parties were not married. Applications can be made to the Superior Court or the Ontario Court of Justice (family court).
The CLRA still uses the older terminology — “custody” and “access” — because it has not been updated to match the 2021 Divorce Act amendments. In practice, Ontario courts apply very similar principles under both statutes, and the best interests of the child standard governs both.
Practical point: if parties were married, the lawyer should generally proceed under the Divorce Act in Superior Court — this gives access to corollary relief (child support, spousal support, property) in a single proceeding.
Frequently Asked Questions
What does 'best interests of the child' mean in Ontario?
The best interests of the child is the paramount consideration in all custody and parenting time decisions in Ontario. Under s. 16(3) of the Divorce Act (as amended in 2021), courts consider: each spouse's ability to care for the child, the nature of existing relationships, each person's willingness to support the other's relationship with the child, the child's cultural/linguistic/religious heritage, the child's views and preferences (depending on age and maturity), and family violence. There is no presumption of equal parenting time.
What is the difference between decision-making responsibility and parenting time in Ontario?
The 2021 Divorce Act amendments replaced the terms 'custody' and 'access' with 'decision-making responsibility' and 'parenting time.' Decision-making responsibility refers to the authority to make significant decisions about a child's health, education, religion, and extracurricular activities — it can be shared (joint) or with one parent (sole). Parenting time refers to the physical time each parent spends with the child — it can range from primary residence with one parent plus scheduled time with the other, to equal or near-equal shared parenting.
What is the difference between the Divorce Act and the Children's Law Reform Act in Ontario?
The Divorce Act (federal) applies when parties are or were married. The Children's Law Reform Act (CLRA, provincial) applies when parties were not married. Both use a 'best interests of the child' test. The 2021 Divorce Act amendments introduced the new terminology (decision-making responsibility, parenting time) and explicit family violence provisions. The CLRA uses older terminology (custody, access) but Ontario courts apply similar principles.
How does family violence affect custody decisions in Ontario?
The 2021 Divorce Act amendments added explicit family violence provisions at s. 16(4). Courts must consider: the nature/seriousness/frequency of the violence, whether it is directed at the child or whether the child was exposed to violence between the parties, the risk the violence poses to the child, and any steps taken by the person who engaged in violence to improve behaviour. There is no absolute bar to parenting time for a violent parent, but courts take violence seriously as a factor in assessing best interests.
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