When parents separate, one of the most important decisions they face is how to share decision-making (what used to be known as custody) and parenting time of their children. Many separated parents wonder whether Ontario law presumes that time with the children should be divided equally between them. In this blog, we’ll explore the legal framework surrounding this issue and clarify whether there is a presumption of equal time in Ontario, as well as the factors that can influence a court’s decision.

Is There a Presumption of Equal Time?

In Ontario, there is no automatic presumption that parenting time should be equally divided between both parents. 

While the concept of “joint decision-making” or “joint custody”(where both parents share responsibility for major decisions in a child’s life) is recognized in the Divorce Act and the Children’s Law Reform Act, the idea that parenting time should be equally split is not automatically assumed by the courts.

Instead, the courts prioritize the child’s best interests above all else when making custody and access decisions. This means that the division of time between parents depends on the individual circumstances of the family, including the child’s needs, the parents’ ability to co-parent, and the existing parent-child relationships.

Factors Influencing Parenting Time

Ontario courts look at a variety of factors to determine the best parenting arrangement for a child. Some of the key considerations include:

The Child’s Best Interests

Under both the Divorce Act and Ontario’s Children’s Law Reform Act, the child’s best interests are the primary concern. This encompasses several factors, including:

   – The child’s physical, emotional, and psychological well-being

   – The child’s views and preferences, depending on their age and maturity

   – The child’s relationship with each parent, including the history of the relationship

   – The ability and willingness of each parent to support the child’s relationship with the other parent

The Parents’ Ability to Co-Parent  

Courts will assess whether the parents can effectively communicate and make joint decisions in the best interests of the child. If the parents have a history of conflict or an inability to co-parent, equal time may not be in the child’s best interests.

Practicality of Equal Time

Equal time may not be feasible in all situations. For example, if the parents live far apart or if one parent works irregular hours or has a demanding job, an equal division of time might be difficult to arrange. Courts will consider what is practical and, in the child’s, best interests in light of the parents’ circumstances.

The Child’s Age and Developmental Needs

The age and developmental stage of the child play a critical role in custody and access decisions. Very young children may benefit from a more stable environment with one primary caregiver, while older children may be able to manage a more equal time split.

History of Caregiving

Courts will also look at which parent has been the primary caregiver prior to separation. If one parent has been the primary caretaker, this may be taken into consideration in how the schedule should operate post-separation.

Recognition That Changes are Inevitable 

While Courts will focus on disrupting a child’s life as minimally as possible post-separation, parents must also recognize that change is inevitable and therefore parenting time and responsibility will look different after a separation. While there is no automatic presumption of equal time, post-separation the aim of the Courts will be to provide each parent with as much time as possible, taking into consideration the factors noted above. 

Joint Decision-Making vs. Equal Time

There is a distinction between shared or joint decision-making/custody and equal parenting time. Joint/shared decision-making refers to both parents having significant decision-making responsibility for the child, while equal parenting time means that the child spends a roughly equal amount of time with each parent. 

Joint/shared decision-making does not necessarily imply that time is split equally. Parents may share decision-making authority over things like education and healthcare, but the actual time the child spends with each parent can vary. Courts are often flexible in making arrangements that suit the child’s best interests, and they may order one parent to have primary care/decision-making but still allow substantial or equal parenting time for the other parent.

How do Parties Create a Parenting Schedule? 

A well-designed schedule can help provide stability and consistency for the children while allowing both parents to remain actively involved in their lives. However, creating this schedule can be challenging, especially when emotions run high. Here are som ways parties can arrive at a fair and workable parenting schedule.

Mutual Agreement Between Parents

In many cases, parents can come to an agreement about a parenting schedule on their own. This can happen through direct negotiation with or without lawyers. If both parents can communicate effectively and prioritize the child’s needs, they may be able to agree on how to share time with the child.

Mediation

If parents struggle to come to an agreement on their own, they may turn to mediation. Mediation is a voluntary and confidential process where a neutral mediator helps both parents discuss their concerns and try to reach a resolution. Mediators are not decision-makers; their role is to facilitate constructive conversations and guide the parents toward a solution.

Court-Ordered Parenting Schedule

When parents cannot reach an agreement despite their best efforts, the court may step in to establish a parenting schedule. The judge will consider the best interests of the child as the primary factor in determining how time should be allocated between the parents.

Flexibility in the Parenting Schedule

Even after a schedule is created, it is important to recognize that flexibility may be necessary. Life changes, such as changes in work schedules, re-partnering, or the child’s evolving needs, may require modifications to the parenting plan. Parents who are open to flexibility and can communicate openly are more likely to adapt successfully to changing circumstances.

Decisions about parenting time are made on a case-by-case basis, with a focus on the best interests of the child. If you are facing separation and have questions about parenting arrangements and equal time sharing, it is important to seek legal advice to help you navigate this important process.

Arriving at a parenting schedule after separation requires a careful and thoughtful approach. Whether through mutual agreement, mediation, or a court order, the primary goal is to ensure that the child’s best interests are met – not that everything be equal, or that fixed parenting roles continue post-separation. 

For more information or to discuss your case, feel free to contact our office. We are here to support you through every step of your family law journey.


At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business lawreal estate lawestate lawemployment law, health law, and tax law. For over 140 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

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