Parenting time and decision-making in Ontario

No, and this is the most common misunderstanding in the area. Section 16(6) says a child should have as much time with each spouse as is consistent with the best interests of the child. The final clause is the whole provision.

The old Act contained a maximum contact principle that was frequently argued as though it created a presumption. The 2021 wording makes the qualifier explicit: maximum time is a principle to give effect to, subject to what is in this child's best interests. There is no presumption of equal time, and there never was one.

What produces a shared schedule in practice is the ordinary factors: the history of care, the distance between homes, the children's ages and school, work schedules, and whether the parents can communicate and cooperate under paragraph (3)(i). Two parents living twenty minutes apart who can speak to each other are a different case from two living an hour apart who cannot.

It also matters financially, because a shared arrangement crossing 40 per cent of parenting time changes how child support is calculated under section 9 of the Federal Child Support Guidelines. That is a reason to be careful: a schedule built to reach a number rather than to suit the children is visible, and courts look at what actually happens rather than at what the document says.

Decision-making responsibility covers the significant decisions: education, health care, religion and spiritual upbringing, and significant extracurricular activities. Section 16.3 allows it to be allocated to either parent, to both, or split so that different aspects go to different people, which is the flexibility most separation agreements use.

Joint decision-making works where parents can communicate. Where they cannot, it produces deadlock on exactly the decisions that cannot wait, and an arrangement that gives one parent final say on health and the other on education is often more workable than one that requires agreement on everything.

Day-to-day decisions are separate and they belong to whoever has parenting time. Section 16.2(2) gives that person exclusive authority to make day-to-day decisions affecting the child during their time, unless the court orders otherwise. Bedtimes, meals, and what happens on a Saturday afternoon are not shared decisions.

Information is separate again. Section 16.4 entitles anyone with parenting time or decision-making responsibility to request and be given information about the child's well-being, including health and education, from the other parent or from any other person likely to have it. A parent with no decision-making responsibility can still ask the school for the report card.

Only with proper notice, and the answer depends heavily on the existing arrangement. Under section 16.9(1) a person with parenting time or decision-making responsibility who intends to relocate must give at least 60 days notice before the expected date, in the prescribed form, to anyone with parenting time, decision-making responsibility or contact.

The notice has to say when, where, and how parenting time would work afterwards. A court can waive or modify the requirement under section 16.9(3), including where there is a risk of family violence, and that application can be made without notice to the other party under section 16.9(4).

Where the move is contested, section 16.93 allocates the burden of proof according to the arrangement the parties have actually been living by. If they substantially comply with an arrangement giving the child substantially equal time with each, the parent who wants to move must prove the relocation is in the child's best interests. If the child spends the vast majority of time with the parent who wants to move, the parent objecting must prove it is not. In any other case, both bear the burden.

Section 16.92 then adds seven relocation factors to the ordinary ones, including the reasons for the move, its impact on the child, and whether the notice requirements were complied with. And section 16.92(2) forbids one question outright: the court shall not consider whether a parent prevented from relocating with the child would move anyway or stay. That closes off a line of questioning that used to put parents in an impossible position.