Parenting (married spouses)

You and your spouse love your children. That doesn’t change because your relationship with each other has broken down.

It’s important for your children that you and your spouse still work together as co-parents.

During your relationship, you and your spouse were used to sharing parenting tasks and making parenting decisions in a certain way. Your parenting roles and responsibilities may change after separation. This can be difficult to navigate.

You and your spouse can agree on the considerations that impact your children. If you cannot agree, a Judge or arbitrator will decide, based on the law and the best interests of your children.

The Courts and lawyers use legal terms and concepts to help structure parenting arrangements and resolve parenting issues.

The Divorce Act is federal legislation that applies to married couples. The Family Law Act is provincial legislation that also applies to married couples. We usually apply the Divorce Act concepts and terms when talking about parenting in married families.

For a better understanding, below are some common legal parenting concepts that may apply to you:

“Decision Making Responsibility”

Major decisions about a child often include non-emergency medical or/dental care, education, religion, and extra-curricular activities.

Decision making responsibility can be allocated to both parents jointly, to one parent, or some decisions joint and some to an individual parent. This responsibility is not about the actual parenting schedule or where the child lives, but about decision-making authority.

Joint decision-making responsibility

Joint or shared decision-making responsibility is a common arrangement. In this arrangement, you and your former spouse have the legal responsibility to participate equally in major decisions about the children. If you disagree with each other, these issues can be resolved in or out of Court.

You and your spouse can split major decision-making. For example, you may choose your children’s doctors and dentist and your spouse may decide where they go to school.

Sole decision making responsibility means that one parent only makes major decisions.

The other parent does not have the right to have input into decisions affecting the children, although they often have the right to be informed. This is uncommon and is usually only seen in high conflict, absent parent, or extreme situations.

Major decision-making can be reviewed by the Court if there is a change in circumstances that meets the legal threshold.

There is a difference between major and day-to-day decisions regarding children.

Day-to-day parenting decisions, like what your children have for dinner, are usually made by the parent caring for the children at the particular time.

Parenting time: the schedule

“Parenting time” in the Divorce Act refers to the time the children spend with each parent. This is the schedule: where does the child live, and when does the child spend time with each parent.

If there is a dispute about whether your children live with you or your spouse, or what the schedule will look like, the Courts will decide based on what is in your children’s best interests.

It is most common for children to spend time with each parent and sleep at the homes of each parent, arranged in a schedule. There is no default schedule contained in the Divorce Act. it is the best interests test that Courts consider. The Divorce Act sets out many factors to consider when looking at best interests.

Often, children mostly live with one parent. This is sometimes referred to as the primary care of the children. For child support purposes, children live with a parent if they spend 40% or more of their time with that parent, which includes sleeping at their home.

Shared parenting

Shared parenting refers to you and your spouse sharing the day-to-day care of the children on an approximately equal basis. For example, one week with each of you, or several days each week with each of you. The parenting schedule is typically tailored to your family and your children. This type of situation works best if you and your spouse live in the same area and are able to communicate effectively. Shared parenting time also has implications for child support, and the measure for child support is based on 40% or more of parenting time with the child.

Split parenting means that siblings live with separate parents.

This is fairly unusual, although sometimes applies when there is a wide age difference between the children, because of severe hostility between the children, or the inability of a parent to care for all of the children.

Parenting time

Prior to March 1, 2020, the Divorce Act referred to “custody” to cover both decision making authority and the schedule; and “access” was also part of the schedule. These terms still arise from prior agreements, cases and court order. The current terms are “decision making responsibility” and “parenting time”.

Spending time with each parent is the right of the children, not the right of the parent. The Courts consider it in the best interests of the children to get to know each parent on an individual basis. Regular time with each parent is often very important as it helps maintain your children’s emotional bond despite the separation.

You and your spouse have an obligation to encourage your children to spend time with the other parent. It is important that you both follow the parenting schedule and if a change is required, to give the other party ample notice and an alternative, when possible. You and your spouse should use your best efforts to make parenting go smoothly, especially at exchanges of the children.

Parents should work together to try to maintain the children’s routine. You cannot interfere or control what happens during your spouse’s parenting time, as long as the children are safe. During their time with each parent, children get to bond with that parent and get used to their new life after separation. This may include contact with that parent’s new partner.

The needs and best interests of the children should determine parenting time. You and your spouse or the Court decide whether parenting time is open, specific or flexible, or if it comes with conditions.

Protection against family violence and safety are also important considerations when building the parenting schedule, and to determine the child’s best interests.

Reasonable and generous parenting time

“Reasonable and generous parenting time” is a standard, open and flexible arrangement. If you and your spouse can communicate effectively, you can arrange specific dates and times between you and have a flexible parenting plan.

Parenting Plan: Specified parenting time

“Specified parenting time” is also reasonable and generous access but sets out specific dates and times. It may include the details for vacations, holidays, long weekends. This is most common. A structured parenting schedule often reduces stress by avoiding miscommunication and confusion. The Parenting Plan (the schedule) can be attached or included in the court order.

Conditions on parenting time

Parenting time is rarely denied by the Courts unless there are exceptional circumstances such as alcohol, drug, emotional or physical abuse, or a risk of leaving the jurisdiction. However, if the situation is serious, the Court may place conditions on parenting time, for example, supervision, time limits, or a no drinking clause.

“Supervised parenting time” means that a third-party is present during a parent’s time with their children. It may be appropriate in situations where there are concerns about drug, alcohol, physical or other abuse, or inability to parent. The supervisor is a mutually someone both parties agree on or a professional from a supervision agency.

The Courts and legislation encourage parties to have a Parenting Plan.

The parenting plan would set out major decision-making responsibility and how and when your children spend time with you and your spouse, and even a process for dispute resolution. The plan is unique to each family, based on your family’s needs and issues. The ultimate goal is, of course, to come up with a plan which will be best for your children.

Interim versus final arrangements

Until parents make final decisions or have a trial on parenting issues, the Court makes interim arrangements.

Relocation and mobility refers to when the children move

Regardless of the type of parenting plan and decision making responsibility a move by one parent may have serious consequences for the other parent and the children. The Divorce Act has specific provisions that set out a process to assess whether a parent is permitted to move with a child. If the matter proceeds to Court, the Courts will consider the best interests of the children – in the current situation – in the proposed new city or living with the parent who does not move. This area of law is evolving. If you are considering a move with your children, consult with your lawyer.

Enforcing parenting time

The Court will enforce a parent’s parenting time. If you have a specific Court Order with a police enforcement clause, the police may enforce your parenting time. This method of enforcement is usually only appropriate in extreme cases (such as possible child abduction) as it can be distressing to your children. The Court also has the discretion to discipline a parent who regularly interferes or limits the other parent’s time through fines, contempt of court, and even a change in the parenting plan. If you are having problems enforcing your parenting time, talk to your lawyer.

Parenting After Separation Seminars

The Court offers these are free seminars to assist parents who are experiencing separation. This course is mandatory if you are divorcing and voluntary if you are not married. We strongly recommend that you take this course.