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 FAQs
Parenting After Separation
What is decision-making responsibility?
Decision-making responsibility means having the authority to make the major decisions about the child. When a marriage or relationship breaks down parents must decide on arrangements for the care of the children. The law recognizes the equal right of each parent, whether or not they are married, to have decision-making responsibility for their children. Parents may be able to choose either sole or joint decision-making responsibility, or parents may identify specific areas where one parent has decision-making responsibility. For example, one parent may have sole decision-making responsibility for matters concerning education while another has sole decision-making responsibility for matters concerning the child’s religious or cultural upbringing.
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What is parenting time?|
Parenting time is the time a parent has physical care and control of a child. When a relationship or marriage ends, parents must make decisions about parenting time, including how much time the children spend in each parent’s household. The law recognizes the equal right of each parent to have parenting time, but that does not mean that it requires parents to follow a 50/50 arrangement – often called shared parenting time. Instead, parents are expected to make decisions about living arrangements and parenting time based on the best interests of the children, which may involve sole parenting time with one parent or having the majority of parenting time with one parent while the other parent sees the children on a regular schedule, such as every other weekend. Another less common arrangement is split parenting time, which refers to arrangements where each parent has primary care of at least one of their children.
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How do we decide about parenting arrangements?
You and the other parent can agree on decision-making responsibility and how parenting time will work. The law assumes you both have decision-making responsibility unless you agree otherwise or ask a court to decide differently. You can put an agreement in writing in a parenting agreement or include it in a separation agreement. Because this is such an important issue, you should each consult a lawyer. If you need help to reach an agreement, you may want to try the services of a mediator. If you cannot agree, you can apply to the court and a judge will decide for you. The judge will issue a court order, which sets out the legal responsibilities, rights and obligations of both parents. You will likely need the help of a lawyer to apply to court.
*For detailed information, please refer to “Parenting After Separation”
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What does “best interests of the child” mean?
Judges make custody and access decisions based on what is best for the child, not what is best for the parent. The judge only looks at what is in “the best interests of the child”. The judge may look at the following:
- The needs of the child, given the child’s age and stage of development, such as the child’s need for stability;
- The child’s relationship with the parents, siblings, grandparents, and any other important person in the child’s life;
- The parent’s willingness to support the child’s relationship with the other parent;
- The history of the child’s care;
- The child’s views (if appropriate);
- The child’s heritage (including language, culture, and religion);
- The plan for the child’s care;
- The ability of the parents to provide care and meet the child’s needs;
- The ability of the parents to communicate and cooperate on matters affecting the child;
- Any family violence (which is very broadly defined); and
- Any civil or criminal proceeding that is relevant to the safety, security, and well-being of the child.
The court may consider your willingness to provide parenting time and support the relationship of the child and the other parent when deciding parenting of the child. If you refuse to cooperate, the court may not look on this favorably
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If we agree on parenting time and decision-making responsibility, why should we bother getting a court order?
For parents who separate it is very important to have terms of parenting time and decision-making responsibility set out by a legal agreement or court order. If the children live with you without a court order or legal agreement (de facto primary care), it may be hard to enforce your rights if the other parent decides to take the children. If you are a parent with a parenting time schedule and the parent with de facto primary care denies you your parenting time, you may not be able to enforce your rights.
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Can we change a parenting order or agreement?
As long as it is in the “best interests of the child” you may change an existing order. Informal changes of a court order have no legal effect and may jeopardize further rights. For example, a couple may agree to follow a new agreement without changing the court order. If one parent suddenly decides to break the informal agreement, the other parent cannot go to court to enforce it. It is best to apply to have the order varied. You can have an agreement or order varied by consent. A judge would sign the changed agreement or order making it a court order.
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If a parent breaks a condition of their parenting order or agreement, such as not bringing the children back on time, can the other parent call the police to go get them?
Family court orders/agreements are between two people, two private citizens – this area of law is called civil law. Police enforce criminal law, not civil law. If one parent is consistently breaking the conditions of their order, the other parent would have to ask their lawyer to apply to family court to deal with the problem.
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If a parent stops visiting with the children, can they stop paying child support?
No. Support is a separate legal issue from parenting time and decision-making responsibility. When making decisions about parenting time and decision-making responsibility, Courts only consider the best interests of the child. Whether a parent visits with the child will not influence the Court’s decisions on child support and vice versa.
For more information, see our fact sheet “Can a Parent End All Rights and Obligations to a Child?”
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Can I get the Court to force the other parent to visit the children?
No, the Court will not force visitation.
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