Decision-making and parenting time in Ontario — how it actually works
Last updated: June 11, 2026
TL;DR. Ontario does not use the words "custody" or "access" anymore. Since the 2021 changes to the federal Divorce Act, the legal terms are "decision-making responsibility" — who makes the major calls about education, healthcare, and religion — and "parenting time" — when each parent is with the children. Courts decide both questions using a single test: the best interests of the child. Three arrangements dominate: shared parenting (each parent has the children at least 40% of the time), primary parenting (one parent has the bulk of parenting time, the other has set time), and split parenting (different children primarily with different parents). Your behaviour during separation is being watched, even if no one's said so out loud. This article walks through what counts, what doesn't, and the one thing to do this week.
Why this matters
The language change is not cosmetic. It signals a shift in how Ontario courts and the federal Divorce Act frame the conversation — away from parental ownership of the children, toward parental responsibility for the children. Men who walk into a first meeting with a lawyer still using "custody" and "access" usually leave a few minutes later having heard a small correction, and the correction tells you something about the room.
The other reason it matters: parenting time and decision-making are the two questions that produce the highest emotional cost in a separation and the most expensive court time. Getting clear on what the law actually asks — and what it does not — saves months of fighting over the wrong battles.
What changed in 2021 with the Divorce Act?
The federal Divorce Act was amended in March 2021. Out went "custody" and "access." In came "decision-making responsibility" and "parenting time" (Department of Justice — Changes to the Divorce Act). Ontario's Children's Law Reform Act was updated at the same time so that married and unmarried parents are governed by parallel terminology.
A few practical implications. First, the old language ("sole custody," "joint custody," "primary access," "every-other-weekend") is no longer the legal language, though many lawyers and judges still use it conversationally. Court orders and separation agreements drafted today use the new terms. Second, the change reflects a deliberate move away from a winner-loser framing. "Custody" implied possession. "Decision-making responsibility" implies a job. The job can be split, can be allocated by topic (education to one parent, healthcare to the other), or can be held jointly. Third, the new framework explicitly contemplates parenting plans that look more like a logistics document than a verdict — schedules, holidays, communication protocols, dispute resolution.
The Ontario-specific note: nothing about the change altered the underlying test courts apply. The best interests of the child has been the only test that matters since long before 2021. The change is in the vocabulary and in the procedural defaults, not in the substance of what gets weighed.
What is "decision-making responsibility"?
Decision-making responsibility is the authority to make significant decisions about a child's well-being — section 2(1) of the Divorce Act. The categories are listed in the statute: health, education, culture, language, religion and spirituality, and significant extracurricular activities. Day-to-day decisions during a parent's parenting time — what's for dinner, what time bedtime is, whether they can watch a movie before homework — belong to the parent the children are with at the time. Those decisions are not "decision-making responsibility" in the legal sense.
Decision-making can be allocated in three structures. Joint, where both parents share the authority and must agree on major decisions. Sole, where one parent has the authority alone. Split by topic, where one parent decides on (say) education and the other decides on (say) religion. Joint is the most common allocation in negotiated agreements where the parents can communicate. Sole is more common where there is high conflict, geographic distance, or a history that makes joint decision-making unworkable. Split-by-topic is rarer but useful where the parents trust each other's judgment in different domains.
A point worth knowing: decision-making responsibility is independent of parenting time. A parent with very little parenting time can hold joint decision-making responsibility. A parent with the bulk of parenting time can be allocated sole decision-making. Courts treat the two questions separately, and the answer to one does not dictate the answer to the other.
What is "parenting time" and how is it allocated?
Parenting time is the schedule — when each parent is with the children. Three structures dominate in Ontario, and they map onto child-support outcomes in different ways (more on that below).
Shared parenting is the structure where each parent has the children at least 40% of the time, calculated over the course of a year. The 40% threshold matters because it triggers section 9 of the Federal Child Support Guidelines, which changes how child support is calculated. Shared parenting does not require a 50/50 split — anything from roughly 40/60 to 50/50 qualifies.
Primary parenting is the structure where one parent has the bulk of parenting time and the other has set, regular time — often alternating weekends, one or two weeknights, plus shares of holidays and summer.
Split parenting is the rare structure where one or more children live primarily with one parent and another lives primarily with the other. It typically only fits older-children situations where each child has a stated preference.
For the practical distinctions between the three, including how each affects child support, see our cluster on shared, split, or primary parenting — what each means in Ontario. For how shared parenting specifically changes the child-support math, see how shared parenting changes child support in Ontario.
The choice of structure is not, in most cases, a clean choice. It is the consequence of three other things: where each parent lives relative to the children's school, each parent's work schedule, and the children's own routines. Courts and good agreements work backward from those facts rather than imposing a structure top-down.
What is the "best interests of the child" test?
This is the only test Ontario courts apply when deciding decision-making and parenting time. It is set out in section 24 of the Children's Law Reform Act for unmarried parents and section 16 of the Divorce Act for divorcing parents. The two lists are intentionally parallel and overlap heavily.
The factors courts weigh include: the child's needs given their age and stage of development; the nature and strength of the child's relationship with each parent and other significant people in their life; each parent's willingness to support the child's relationship with the other parent; the history of caregiving in the family; the child's views and preferences, given appropriate weight for their age and maturity; the child's cultural, linguistic, religious, and spiritual upbringing; any plans for the child's care; the ability of each parent to care for and meet the child's needs; the ability of each parent to communicate and cooperate with the other; family violence and its impact on the appropriateness of contact and on the parents' ability to care for the child.
The full breakdown of each factor is in our cluster post on the best interests of the child. Two things to flag here. First, the parents' wishes are not on the list. The test is the child's best interests, not the parents' preferences. Second, "fault" in the breakdown of the marriage is also not on the list. Affairs, blame, who-left-whom — none of that is what a court is weighing when it allocates decision-making and parenting time. The exception is family violence, which is explicitly considered, but family violence is a specific statutory concept, not a synonym for "we don't get along."
What courts actually pay attention to in a contested case
Beyond the statutory list, a few patterns show up in nearly every contested decision-making and parenting-time case in Ontario.
Status quo. What the actual living-and-caregiving pattern has been in the recent past — typically the last six to twelve months — carries real weight. Courts are reluctant to disrupt a stable arrangement that is working for the children. This is why moving out of the matrimonial home in week one can have parenting consequences months later: it creates a status quo. The men who are most careful in the first month are the ones who understand this point.
Primary caregiver history. Who has historically been the one taking the children to medical appointments, communicating with teachers, managing extracurriculars, handling bedtime, knowing about friendships. This is not about who earned the income. It is about the operational caregiving load. Where one parent has handled the bulk of that load, courts tend to weight that history.
Communication and cooperation capacity. A parent who can demonstrate the ability to communicate civilly with the other parent — even through the worst of the breakdown — is the parent courts trust to share decision-making. A parent who cannot stop sending hostile texts at 2 a.m. is making a record that will be referenced later. Whatever you put in writing, assume it ends up in front of a judge eventually.
The child's voice. Where children are old enough — typically around age 11 or 12 and up — their stated preferences carry weight, calibrated for maturity. Below that age, the child's voice is heard but not given controlling weight. In high-conflict cases the Office of the Children's Lawyer may be appointed to represent the child's interests independently.
Your behaviour during separation. Not as a separate factor in the statute, but as evidence that runs through several of them. How you treat the other parent in front of the children. Whether you stick to the parenting schedule once one is in place. How you communicate. Whether you involve the children in adult conflicts. Family courts watch this. So does the Office of the Children's Lawyer when they are involved.
How parenting time interacts with child support
The two questions are formally separate, but they connect in a specific way. Child support in Ontario is calculated using the Federal Child Support Guidelines (full overview in our pillar on how child support is calculated in Ontario). Where parenting time is primary or near-primary with one parent, the table amount of child support applies directly. Where parenting time crosses the 40% threshold into shared parenting territory, section 9 of the Guidelines applies — a different math, where each parent's table amount is calculated and the higher earner pays the difference, often with a discretionary adjustment.
The practical implication: time and money are linked, but in a structured way. The structure is not "the more time I have, the less I pay" in a clean linear sense. Courts and seasoned counsel know exactly what happens at 39% versus 41%, and they spot it instantly when one parent is angling for the threshold for financial reasons. The advice every family law practitioner gives — and that this article will repeat — is to negotiate the parenting schedule based on what works for the children, not the math. Gaming the time split for tax reasons creates two bad outcomes: a schedule that doesn't fit the children, and a judge who is annoyed.
To see what your specific numbers look like at different parenting-time scenarios, the Cairn calculator lets you toggle between primary and shared structures and compare the cash flow.
The one thing to do this week
Write down the actual parenting pattern over the last six months — week by week, who had the children when, including school pickups, medical appointments, evenings, and weekends. Be honest with yourself about it. That document is the foundation for every parenting conversation you'll have from here forward. It is what your paralegal needs. It is what a mediator needs. It is what a judge would want to see. Most men do not have this in writing and end up reconstructing it under pressure. Do it before the weekend.
Where Cairn helps next
A five-minute intake gives you a specific Ontario plan, your support numbers, and the one thing to do this week. Free, no credit card.
- Your specific Ontario plan, free, in five minutes
- The action plan that tells you the next step every week
- Built only for Ontario family law
The Cairn dashboard includes a parenting-plan workspace and a parenting log designed for exactly the kind of week-by-week tracking the section above recommends. The what we do page lays out scope — Ontario only, information not legal representation. For the longer view on living alongside a co-parent you can't stand right now, our pillar on co-parenting after separation is the next read.