Sole? Joint? Split? Shared? Your Guide to Understanding Child Custody (Including its New Name)
By Lakshani Perera | August 17, 2022
There is a common misunderstanding on what the terms “custody” and “access” mean. First, it’s important to understand that the Divorce Act (which applies in all of Canada), and other provincial legislation in Ontario changed the terminology as of March 1, 2021. Custody is now referred to as “decision-making responsibility” and “access” is now called “parenting time.”
It is often misunderstood that “custody” of a child is about who the child lives with or how much time the child spends with each parent. However, custody essentially means decision-making power. Child custody (now “decision-making responsibility”) means having the legal right to make major decisions about how to care for and raise your child. The parent with “custody” has the right to make important decisions about the child’s health, education, culture, language, religion and spirituality, and significant extracurricular activities. Some examples include choosing the child’s school and making medical decisions for the child.
How does “decision-making responsibility” (custody) work?
This decision-making responsibility for your child or children is decided based on the “best interests” of the children and is assessed from a child-centered perspective. Parental preference and parental rights play no role in making orders of decision-making responsibility (custody), according to the law in Ontario and Canada.
When making parenting arrangements regarding decision-making responsibility for your children, you should ask yourself:
- Who will decide on matters such as your children’s education, health and religion, and how will you decide?
- How will you settle any parenting issues and disagreements that come up in the future?
When discussing the type of parenting arrangement that will work best, talk to your lawyer about what’s important to you: such as the amount of time you will spend with your child, having input into decisions, having full access to medical and educational information about your child, your child keeping their surname, an agreement that the other parent can’t relocate to another city without your permission or a court order, or being allowed to attend public functions or extracurricular activities when your child is present, and many others.
Types of “decision-making” (custody) and “parenting time” (access) arrangements
It’s important to understand the different types of decision-making (custody) and parenting time arrangements that are possible. Generally, “sole decision-making” and “joint decision-making” have to do with the legal right to make decisions. “Split” and “shared” parenting refer more to sharing of parenting time—how much time the child or children spend(s) with each parent. (You may also see more creative terminology used for “decision-making” or “custody”, even in judge’s orders, such as shared parenting, joint parenting, or co-parenting, so be sure everyone involved is clear on what the “title” actually means.)
Let’s take a closer look at the different types of decision-making and parenting time arrangements.
Sole decision-making: In this arrangement, the parent is usually responsible for the child on a daily basis and is the person who makes all the major decisions about the child, including the school they will go to, their medical care, or what religion the child will practice. The parent with sole decision-making does not need the consent of the other parent to make a major decision. When one parent has sole decision-making responsibility of a child, the other parent will typically have parenting time with the child and will usually still have the right to be informed of all major decisions (and to sometimes have input).
Joint decision-making: This means the parents share an equal responsibility for major decision-making about the child. They will decide together on what school the child will go to, as well as health-care and religious decisions. In some family circumstances, parents who have joint decision-making may choose that one parent will decide on medical decisions, while the other will decide on educational matters. Sometimes, other arrangements will be made for final decision-making if there is a disagreement (for example, with the input of a third party such as a teacher, health professional or religious advisor, or with some form of mediation). It comes down to what works best for each unique family.
Joint decision-making does not necessarily mean that both parents will get equal sharing of parenting time with the child. That is a separate issue to be decided. Joint decision-making works best when the parents are able to communicate effectively, cooperate and work together for the best interests of the children. They must be able to set aside their own personal conflicts when it comes to making decisions.
Split parenting time: This refers to a situation where each parent has at least one child in their primary care (with decision-making authority), often with parenting time to the other child or children who reside primarily with the other parent. In these situations, both parents have sole decision-making responsibility for one or more of the children (although it is possible for decision-making to be shared for one or more of the children in such an arrangement). This type of arrangement is less common, as courts and child professionals prefer for siblings to be kept together. Split arrangements are more likely to occur when the children are old enough to expressly say who they wish to live with.
Shared Parenting Time: This refers to an arrangement where a child’s time is shared between both parents more or less equally (i.e., where the child is with each parent for at least 40% of the time over the course of the year). It is possible for this to be the case even if the parents don’t have shared decision-making for that child.
It is important to note that parenting arrangements for a child (including decision-making and parenting time) are never final or exhaustive. This is because children and their needs are changing, and are variable. An order or agreement stating the parenting arrangements can always be varied based on the child’s “best interests” if new circumstances arise.
Be clear about what your parenting agreement means.
Set up a time to talk with one of our experienced family lawyers at Henderson Family Law today.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.