Child Custody in Ontario (2026): Decision-Making Responsibility, Parenting Time and the Best Interests Test
Canada no longer uses the words custody and access. The law now speaks of decision-making responsibility and parenting time, and one question governs everything: what is best for this child?
Key takeaways
- Since March 1, 2021, the Divorce Act and Ontario's Children's Law Reform Act use "decision-making responsibility" and "parenting time" instead of custody and access.
- The only test is the best interests of the child. There is no automatic presumption of 50/50 parenting.
- The court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being.
- Family violence is a mandatory factor, and a parent's willingness to support the child's relationship with the other parent matters.
- A parent who wants to relocate with a child must give written notice, and the Supreme Court of Canada set out how courts decide these cases in Barendregt v. Grebliunas, 2022 SCC 22.
No legal issue is more important to a separating parent than the future of their children. It is also the area where people most often act on outdated information. If you are searching for a "custody lawyer in Toronto", the first thing to know is that the law changed on March 1, 2021, and the vocabulary changed with it.
From custody and access to decision-making and parenting time
The amended Divorce Act (for married spouses who are divorcing) and Ontario's Children's Law Reform Act (for unmarried parents and parents who are not divorcing) now use two concepts:
- Decision-making responsibility: who makes significant decisions about the child's health, education, culture, language, religion and significant extracurricular activities. It can be given to one parent, shared jointly, or divided by subject (for example, one parent decides education and the other health).
- Parenting time: the time a child spends in each parent's care. During that time, the parent makes day-to-day decisions.
Non-parents, such as grandparents, may apply for contact. Orders made before March 2021 remain valid, but new orders and agreements use the new terms.
The best interests of the child: the only test
The court must consider only the best interests of the child, and it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Beyond that, the legislation lists factors the court must weigh, including:
- the child's needs, given their age and stage of development, and the need for stability;
- the nature and strength of the child's relationship with each parent, siblings, grandparents and other important people;
- each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
- the history of care of the child;
- the child's views and preferences, given appropriate weight according to their age and maturity;
- the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage;
- any plans for the child's care;
- each person's ability and willingness to care for the child and meet their needs;
- the ability and willingness of the parents to communicate and cooperate on matters affecting the child;
- any family violence and its impact on the child and on the parents' ability to cooperate; and
- any civil or criminal proceeding relevant to the child's safety.
The court considers past conduct only where it is relevant to the parent's ability to care for the child. Importantly, the law contains no presumption that equal time is best. The court applies the principle that a child should have as much time with each parent as is consistent with the child's best interests, which in practice means the schedule is built around the child, not around fairness between the adults.
Family violence
Family violence is defined broadly. It includes physical and sexual abuse, threats, harassment, and coercive and controlling behaviour, as well as financial abuse and exposing a child to violence. Where violence is proven, it can reshape the entire parenting arrangement, including supervised parenting time or exchanges through a third party. In Ahluwalia v. Ahluwalia, 2026 SCC 16, the Supreme Court of Canada went further and recognized a new civil wrong of intimate partner violence, allowing survivors to claim damages as well.
Moving with a child: relocation
A parent with parenting time or decision-making responsibility who wants to relocate (a move that is likely to have a significant impact on the child's relationship with the other parent) must give at least 60 days' written notice in the prescribed form, with the date of the move, the new address and a proposed new schedule. The other parent can object within 30 days.
In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada restored a trial decision allowing a mother to move with the children, and set out a structured best interests analysis for relocation cases. The Court rejected rigid rules that would penalize a parent simply for asking to move, and emphasized that the inquiry is about the child, not about which parent "wins".
How a custody case actually unfolds in Ontario
- Negotiation or mediation, ideally producing a written parenting plan. Courts generally respect a parenting plan the parents agree on unless it is not in the child's best interests.
- Court application in the Ontario Court of Justice or the Superior Court of Justice (Family Court branch in many regions), starting with mandatory information sessions.
- Case conference before a judge to narrow the issues and order disclosure.
- Motions for temporary orders where something urgent must be decided before trial.
- Assessments where needed, such as a report from the Office of the Children's Lawyer or a private parenting assessment.
- Settlement conference and trial if the matter cannot be resolved.
What judges notice, and what hurts a case
- Keeping the child out of the conflict, and never discussing the case with them.
- Following existing orders to the letter, including exchange times.
- Respectful, child-focused communication. Messages are almost always filed as evidence.
- A realistic plan for school, childcare, health care and activities.
- Supporting the child's relationship with the other parent. Undermining it is one of the most damaging things a parent can do (see our guide to parental alienation in Ontario).
Frequently asked questions
At what age can a child choose which parent to live with in Ontario?
There is no fixed age. The child's views and preferences are one factor, given more weight as the child matures. A teenager's clear, independent views usually carry significant weight, but they do not decide the case on their own.
Is 50/50 parenting the default in Ontario?
No. There is no presumption of equal time. Shared parenting is ordered when it is in the child's best interests, which usually requires parents who live reasonably close and can cooperate.
Do I still need a lawyer if we agree on everything?
A lawyer can turn your agreement into a clear, enforceable parenting plan or consent order, and make sure it covers holidays, travel, relocation and decision-making disputes.
Can I move to another city with my child?
Not without following the relocation rules: 60 days' written notice to the other parent, and a court order if they object. Moving first and asking later can seriously damage your case.
Sources
- Divorce Act, ss. 16 to 16.96 (Justice Laws Website)
- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (Ontario e-Laws)
- Department of Justice Canada, The Divorce Act Changes Explained
- Barendregt v. Grebliunas, 2022 SCC 22
- Supreme Court of Canada, Case in Brief: Ahluwalia v. Ahluwalia, 2026 SCC 16
This article provides general information about Ontario and Canadian law as of the date above. It is not legal advice and does not create a lawyer-client relationship. Laws and court decisions change; speak with a lawyer about your specific circumstances.