Family Law Contents
If you are going through a separation or divorce, it’s important that your children feel safe, loved, and supported. Parenting arrangements can set out things like:
where children will live, how often they will spend time with each parent who will be responsible for making major decisions about them After a divorce or separation children will either: live with one parent split their time between both parents live with someone else Parenting arrangements help ensure the child’s health and safety are put first. Parenting arrangements can be informal between parents who agree on a parenting plan part of a separation agreement ordered by the court Types of parenting arrangements
There are several types of parenting arrangements.
In family law cases, a court may assign responsibility to one or more parent, allowing them to make significant decisions about a child’s life and well-being. The decisions may relate to health, education, religion. other important matters in respect of the child. In addition to parents, non-parents (such as grandparents) can also apply for decision-making responsibility of a child. There are additional requirements for non-parents seeking a parenting order for decision making responsibility. Sections that apply to parents with decision-making responsibility will also apply to non-parents with decision-making responsibility.
If your separation agreement or a court order gives you sole decision-making responsibility of your children: you have the right to make important decisions about their care, education, religious instruction and welfare (unless the agreement or court order says otherwise) you don’t need to involve the other parent when making decisions (unless the agreement or court order says otherwise)
Parents who have joint decision-making responsibility for their children: share the right to make important decisions about their care remain involved in making decisions about the children. For joint decision-making responsibility to work, parents must be able to co-operate and communicate with each other even though they are not together.
De facto decision-making responsibility is when your children live with you, but you don’t have a legal decision-making responsibility arrangement. You have de facto decision-making responsibility if: you and your spouse (whether married or common law) live separate and apart and your children live with you full-time your spouse has accepted this arrangement. If you have de facto decision-making responsibility, then your spouse cannot exercise their decision-making responsibility until a separation agreement or court order provides otherwise. It will be more difficult for you to enforce your decision-making responsibility rights if you do not have them clearly set out in a court order or agreement, especially if you and your spouse disagree on what the decision-making responsibility arrangements have been. You will have legal decision-making responsibility either when you and your spouse sign a separation agreement that says you have decision-making responsibility when a court order says you have decision-making responsibility
Parenting time refers to the time your child spends in your care, regardless of whether the child is physically with you during that time (for example, if the child is at school). You have the right to: parenting time, unless the court decides it is not in the child’s best interest know information about your children’s health, education and general situation Only parents can apply for parenting time. Non-parents will need to apply for a contact order.
Parenting time arrangements can be written out in detail in a parenting plan, separation agreement or court order could state that, for example, the children would be with you every other weekend, or some other arrangement such as the children live at least 40% of the time with each parent (known as shared parenting time) could be open, letting you work out arrangements with the other parent in a more flexible way (it is difficult to enforce this kind of parenting time arrangement) do not give the parent without decision-making responsibility the right to be part of decisions about the children’s health, education and general situation
A court may refuse you parenting time with your children if there is a fear that: you will harm them, you will harm the parent with decision-making responsibility, you will not return the children to the other parent
Parents who have shared parenting time share the amount of time spent with the child. Under the Child Support Guidelines, shared parenting time is where a child lives at least 40% of the time with each parent.
Split parenting time is when parents have more than one child and each parent has one or more children living with them for most of the time.
Supervised parenting time can be arranged if there are safety concerns during visits, or when children are exchanged between parents. When a supervised parenting time arrangement is in place, someone else must be present when you visit with your children.
Supervised parenting time can provide a neutral and safe setting for visits between children and a parent, or other family member who does not have decision-making responsibility. Parents can agree on a supervised parenting time agreement, or it can be required by the court. The person supervising a parenting time visit could be a friend or relative the parents agree on, a paid professional, such as a social worker, a trained professional or volunteer at a Supervised Access Centre Ministry-funded Supervised Access Centers provide fully supervised on-site visits in a group setting supervised exchanges when parenting time occurs off-site. Supervised Access Centers provide a setting where visits and exchanges can take place under the supervision of trained staff and volunteers in a safe, neutral and child-focused environment. Children’s Aid Societies may also provide supervised parenting time services for children in their care.
If both parents agree on where their children will live, how often they will spend time with each parent and how decisions will be made, they can write a parenting plan. A parenting plan can outline things like when each parent will spend time with the children and who will make major decisions about the child. It can be an informal agreement between the two parents or form part of your separation agreement or court order.
It’s important to know that if the parenting plan is an informal arrangement, it can be difficult to enforce.
Arranging parenting time and decision-making responsibility when you and the other parent don’t agree can be stressful and complicated.
You may want to consult a lawyer who can help make sure you understand your options and the legal process. You can try negotiation, collaborative family law, mediation, or arbitration to come up with a plan you both agree on.
If you can’t agree on who should have decision-making responsibility of your children or on parenting time arrangements, you can go to court to have a judge decide and issue a parenting order. A parenting order is a legal order that sets out decision-making responsibility or parenting time regarding a child and can be enforced by the court.
When you go to court, the judge: must make an order that is in the children’s best interests, may ask for an investigation and report from an Office of the Children’s Lawyer clinical investigator may ask for an assessment by a privately-retained social worker, psychologist or psychiatrist who will speak to each parent, the children and sometimes other people must consider any family violence between any family members will consider the current living arrangements of the child. When a judge makes a parenting order, they can decide things like: who will get decision-making responsibility where the children will live when and how they will see the other parent
A parenting order is a court order that sets out decision-making responsibility or parenting time in respect of a child and can be enforced by the court. If you need a parenting order, there are certain steps you need to take and forms you need to fill out. You may want to speak to a lawyer about whether you need a parenting order because you may be able to resolve these issues without going to court. You might need a parenting order if: you are not living with your child’s other parent and have not been able to negotiate or mediate parenting time or decision-making responsibility arrangements you are looking after a child whose parents have died or are unavailable, unable or unwilling to care for the child You might need a court order to prove you have decision-making responsibility if you have to:
- Register a child for school
- Consent to medical treatment
- Obtain benefits for the child
- Apply for a passport
- When you are the parent
The process for making an application for a parenting order is different for parents and non-parents.
The person who gives birth to a child unless they are a surrogate. Where a child is conceived through sexual intercourse, the person who is married to or living with the person who gives birth to the child at the time that the child is born
The person certified as a parent of the child under the Vital Statistics Act. A person recognized by a court as a parent to the child under the Children’s Law Reform Act
There are many other factors that may determine whether you are a parent under Ontario law. If you need more information about whether you are a parent for the purposes of making a parenting order, it is best to speak with a lawyer.
Parents need to fill out the following forms to start a claim for a parenting order:
- A general application (Form 8)
- Affidavit (decision-making responsibility, parenting time, contact) (Form 35.1, part A only)
- Affidavit for child protection (Form 35.1A child protection information) – You only need to fill out this section if you, the other party or the children have been involved in a child protection court case or received child protection services at any time
The affidavit tells the court your plan to care for your child is and why it is a good one. You will also answer questions in the affidavit about family violence, involvement in other family court cases and involvement in civil or criminal proceedings. You can get detailed instructions on how to complete the form and other steps in the Guide to Procedures in Family Court.
A person who is not the parent of a child may still apply to the court for a parenting order regarding decision-making responsibility or contact with a child. You will need to submit the following forms:
- General application (Form 8 )
- Affidavit (decision-making responsibility, parenting time, contact) (Form 35.1, parts A and B)
- Children’s Aid Society Report on Records
Affidavit for child protection (Form 35.1A child protection information) – only if you, the other party, or the children have been involved in a child protection court case or received child protection services at any time
police record check
Complete a Consent Form for Police Record Check for Non-Parent Applicants for Decision-Making Responsibility take the form to a police station in your area that conducts police record checks make a note of when you gave the consent form to the police so you can include this information on Form 35.1: Affidavit (decision-making responsibility, parenting time, contact) when the police send you your police record check, you must serve any other parties and file it with the court within 10 days If you already have a police record check, you can file it if:
- it meets the requirements of O. Reg. 24/10
- it was completed within 60 days before you started your application
- Children’s Aid Society reports
- The affidavit for decision-making responsibility, parenting time and contact requires you to confirm you have asked for a for a report from every Children’s Aid Society (CAS) operating in any place in Ontario where you have lived since you turned 18 or became a parent (whichever came first). Court staff can help you find out which cass should be listed in your affidavit, based on where you have lived.
- The listed agencies will send the form back to the court indicating:
- if they have or had any protection records open in your name
- when the file or files were opened
- when the file or files were closed, if applicable
- the subject of a protection investigation
- receiving services from the CAS
the CAS investigated an allegation of abuse or neglect where you were a parent or caregiver to the child. The CAS started a court application involving one or more of your children one or more of your children were or are in the care of the CAS
The report will not include the following situations:
- You were a child in the care of a CAS
- You were the child of a family receiving service
- You were an employee of a CAS
- You were a foster parent
- You were a kinship care provider
- You adopted a child through the CAS
The CAS will return its report to the court within 30 days. If one or more CAS reports having a record relating to you, court staff will contact you.
If a CAS sends a report indicating you have a record with them and you do not want this information to be shared with anyone else involved in your case or included in the court file, you have 20 days to file a motion to seal those records.
You must also include a short affidavit (Form 14A) explaining why you were involved with the CAS and why you do not think this information is relevant to the current case. You should also ask the court to seal your motion material so it will not be shared with the other party. This motion must be made within 20 days of the date the court receives the last CAS report. You do not need to tell the other party that you are making this request.
A person who is not the parent of a child, such as a grandparent, can also ask the court for an order providing for the child to spend time in the care of the person, whether or not the child is physically with the person during that time.
You may want to speak to a lawyer about whether you need a contact order because you may be able to resolve these issues by speaking to the child’s parents without going to court. Get a decision-making responsibility, parenting time or contact assessment An assessment is a report prepared by an assessor, to help you, your spouse (whether married or common law) and the court make decisions about:
- Decision-making responsibility
- Parenting time
- Contact with a child
- Decision-making responsibility, parenting time and contact assessors can be psychologists, social workers, psychiatrists, or mental health professionals.
- Decision-making responsibility, parenting time and contact assessments are usually ordered by a judge to help them decide what is in the best interests of your child. You and your spouse could agree to arrange a private assessment, at a cost.
During an assessment
During an assessment, the assessor:
- Will interview the parent, any person applying for contact and children, individually
- Will observe each parent or person applying for contact with the children
- May contact other family members, new partners, teachers or medical professionals
Once the assessment is complete
Once the assessment is complete, the assessor will prepare a report that includes recommendations, for example:
- How decisions about the children should be made
- Where they should live
- The time that they should spend with each parent or person applying for contact
- Enforcing parenting or contact orders
- Going to court
If a court-ordered parenting or contact arrangement is not being obeyed, you can ask the court to enforce the order. The court may ask the parties to explain their side of the story.
If the court thinks the agreement isn’t being followed without a good reason, the court can act against the person not following the agreement. You can get a fine or go to jail for not following a court order for decision-making responsibility, parenting time or contact.
You can also ask the court to enforce decision-making responsibility, parenting time and contact arrangements made in a separation agreement.
Generally, members of the public can look at family court files, unless a statutory provision, common law rule or court order does not allow it. If you believe that public access to information contained in your court file could lead to physical, mental or emotional harm to someone, including a child, you can file a motion with the court asking for an order restricting access to the court file.
The Office of the Children’s Lawyer (OCL) is an independent law office within the Ministry of the Attorney General. In complicated parenting arrangement cases, the OCL may be involved. It might be hard to determine what is in the child’s best interests and the court may ask for assistance from the OCL to provide services to the child. One or both parents could ask the court to involve the OCL, or the judge can decide on their own. Learn more about the Office of the Children’s Lawyer and decisions about parenting time and decision-making responsibility.
If you think your child is in danger or at risk of being taken out of the country, call the police right away.
© Queen’s Printer for Ontario, 2021. Reproduced with permission. This is not an official version. This webpage is subject to change without notice. For the most current version as made available by Ontario’s Ministry of the Attorney General, please visit https://www.ontario.ca/page/law-and-safety The Ministry of the Attorney General had no role in the creation of the Tahir Majeed Law Firm website content.
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