Persons in Common Law or Dating relationships resulting in the birth of a child can seek parenting orders from both the Ontario Court of Justice and the Superior Court of Justice. Such parenting orders include orders regarding:
- Decision-Making Responsibility;
- Parenting Time; and,
- Contact.[1]
Subject to considerations outlined at Section 20 of the Children’s Law Reform Act, parents have equal entitlement to decision-making responsibility with respect to the child of the relationship.
Decision Making Responsibility
In making an order with regard to decision-making responsibility, parenting time or contact, the court will consider the child’s best interest. When considering parenting orders in common law cases, the child’s welfare is paramount.
One of the principal issues in almost all divorce or separation family law cases is how decisions will be made with regard to the child. Will the court order sole decision-making responsibility in favour of one party, or will it order shared or joint decision-making responsibility? The parties may be able to resolve this issue on their own and submit their agreement to the court as a “consent.” After both parties along with their lawyers (if the parties are represented) execute the consent, the Judge will review the consent before “endorsing” the document so it may be issued by the court as a court order.
It is important to note that parents must at all times exercise their decision their decision-making responsibility in the child’s best interest. Upon separation, such responsibilities may include communicating with the other party before making any major decision regarding the child’s health, education, religion and extracurricular activities. Establishing a clear understanding of decision-making responsibilities is crucial when dealing with parenting orders in common law.
Parenting time Order
In making an order with regard to parenting time, the court will consider the child’s best interest.
In a divorce or separation, a court may order that a child spend an equal amount of time between the parties. Where the child primarily resides with one parent, the other parent can request orders with regard to parenting time on weekends, during the work week, during the Summer school holidays, during the school Winter Break (Christmas and New Year) and during other calendar holidays such as Thanksgiving, Family Day and Easter. Parenting orders in common law aspects may be similar to those in formal marriages, focusing heavily on the child’s wellbeing.
Contact Order
A grandparent may request an order for decision making responsibility or “contact” with respect to a child.[3]
Access To Information Regarding The Child
Any person entitled to parenting time with a child “has the same rights as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.”[4]
Decision-Making Responsibility / Parenting Time: Entitlement Subject To Agreement
Entitlement to decision-making responsibility or parenting time with regard to a child, can be altered by a court order or a separation agreement. As per Section 20 (7) of the Children’s Law Reform Act:
“Entitlement subject to agreement or order
(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.”[5] Hence, understanding parenting orders in common law relationships can help avoid conflicts.
An experienced family law lawyer can assist you in the preparation of a separation agreement dealing with parenting issues, and he/she can also assist you at court, where parenting issues are part of a family law court case.
[1] Section 20, Children’s Law Reform Act, R.S.O. 1990
[2] Section 20, Children’s Law Reform Act, R.S.O. 1990
[3] Section 21(2) and Section 21(3), Children’s Law Reform Act, R.S.O. 1990
[4] Section 20(5) and Section 21(3), Children’s Law Reform Act, R.S.O. 1990
[5] Section 20(7) and Section 21(3), Children’s Law Reform Act, R.S.O. 1990