Parenting time refers to the time spent with a child by a parent. Decision making refers to the legal right to make major decisions about how to care for and raise your child.

On March 1, 2021, the Divorce Act (a piece of legislation that addresses parenting and decision making for children in Canada) as well as provincial family law legislation in Ontario replaced the term “custody” with “decision making responsibility” and the term “access “with “parenting time”.

Decision-making responsibility and parenting time orders are based on a legal framework referred to as the “best interests” of the child test which is a list of criteria set out in the legislation which the Court is expected to consider in granting parenting time, decision making responsibility or a contact order between children and their parents. The criteria include factors related to the physical, emotional and psychological safety, security and well-being of a child.

It is important to note that parental rights and parental preferences are not considered by the courts in determining decision making and parenting time in Ontario and Canada.

Decision Making

Custody of a child was often misunderstood in the past to relate to which parent had primary residence of the child or who the children lived with primarily.

Custody is now referred to as “decision making” and refers to the right of a parent to make important decisions about their child’s health, education, culture, language, religion and spirituality, and other issues such as extracurricular activities.

There are three different decision-making arrangements that are referred to in Ontario case law:

Sole Decision Making: A sole decision-making arrangement provides one parent with the responsibility to make major decisions about the children, including but not restricted to what school they will attend, their non-urgent medical care, or what religion they will practice. The parent with sole decision-making responsibility does not need to obtain consent from the other parent to make a major decision. It is typical (but not always the case) that when one parent has sole decision-making responsibility the other parent will still have parenting time with the child and is informed of the major decisions made by the sole decision-making parent.

Joint Decision Making: A joint decision-making arrangement involves a situation where the parents of the child have equal responsibility for major decision making for their child. The major decisions (examples set out above) are decided by the parents together. Major decisions can be confirmed in writing to avoid misunderstandings. In situations where there is disagreement and conflict the parents may seek the input of a neutral third party like a teacher for education-related decisions, a doctor for medical decision making or a religious advisor for decisions about religion. It is important to note the joint decision making does not equate to equal sharing of parenting time between parents. Parenting time is a separate issue to decision making.

Parallel Decision Making: A parallel decision-making order is usually imposed when there is high parental conflict and in situations where parents have difficulty communicating. In a parallel decision-making situation, one parent makes some decisions (for instance for health and education), and the other parent makes other major decisions (for instance, religious decisions). Parallel decision-making orders can be difficult to construct but may assist with reducing tension between parents by reducing communication between the parties and allowing for independent decision making.

Decision making agreements and court orders can be varied via a motion to change, which is a formal court process used to modify or terminate a final order or agreement regarding child support, parenting time or decision making. Modifying or terminating a decision-making order may be necessary if circumstances between parents change, a parent is no longer able to make decisions or a child’s needs alter sufficiently to require a change in who is responsible for making decisions on their behalf.

Parenting Time

Parenting time, previously referred to as “access”, is an often emotionally charged issue in family law. Ensuring adequate access to children is an issue of high importance in many family law disputes. There are various parenting arrangements that have been recognized by the courts. Some parenting time arrangements have implications for child support calculations.

Parenting Time Arrangements

Shared Parenting (50/50 or similar): Equal parenting time refers to a parenting arrangement for separated parents whereby children spend the same or close to the same amount of time (at least 40% of the time) with each parent.

Sole Parenting/Primary Residence: The child or children live primarily with one parent while the other parent has regular, scheduled parenting time that is less than 40% of the available parenting time.
The 40% is generally calculated according to the number of hours the parent is responsible for the child. For instance, the time a child is at a piano lesson while under the care and responsibility of one parent is included in determining the 40% threshold.

Split Parenting: Split parenting time can only be applied in cases where parents have more than one child. In this arrangement each parent as at least one of the children living with them primarily or for the majority of the time.

The Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) publishes a parenting guide that is intended to help improve communication and cooperation between parents and offers co-parenting guidance to parents who are separated. The Guide’s central theme is the best interests of the child/ren which is typically achieved when parents cooperate and minimize conflict between one another and when the child/ren can foster a significant relationship with both parents. You can access the AFCC parenting guide here.

The Implications of Parenting Time for Child Support

The Child Support Guidelines is the Ontario regulation that sets the standard and quantity of support for children and lays out the regime for child support.
Different parenting arrangements have implications when determining child support.

In a sole parenting arrangement, child support is owed for the child who is primarily resident with one parent. The parent who has less than 40% time with the child/children is obligated to pay child support.

In a shared or split parenting arrangement, the court may consider the additional expenses of shared/split parenting time for each parent and their ability to manage those costs when determining child support. This is usually accomplished through an order for “set-off” payment of child support under section 9 of the Child Support Guidelines.

Section 9 of the Child Support Guidelines applies to shared parenting time situations. The section reads as follows:

“Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 32/21, s. 3.”

The application of Section 9 was explored in Contino v. Leonelli-Contino (2005 SCC 63).

Support orders made in accordance with section 9 of the Child Support Guidelines, often result in “set-off” child support payments.

The “set-off” amount is the difference between the basic child support amounts each parent would pay if they were not sharing parenting responsibilities. Essentially, it represents the amount each parent would owe if they were solely responsible for child support. To determine this amount, each parent calculates their individual child support obligation based on their income using the Federal Child Support Tables. The “set-off” amount is then the difference between these two calculated amounts. These orders are discretionary. The goal of “set-off” child support is to achieve the factors to be considered by the court as articulated by Section 9 of the Child Support Guidelines. Section 9 promotes flexibility and fairness and leaves discretion to the judge to consider the circumstances when determining child support amounts.