Impact of a Simple Divorce on Child Custody in Ontario

How Child Custody Is Determined in a Simple Divorce

Best Interests of the Child: The Primary Legal Standard

Ontario courts follow the Children’s Law Reform Act and the Divorce Act to assess what arrangement would best serve the child. Key considerations include:

• Emotional ties between the child and each parent.
• Stability and continuity in the child’s life, including maintaining routines and relationships.
• Parenting ability, including financial, emotional, and physical capacity to care for the child.
• Child’s preferences, if they are mature enough to express their wishes.
• Any history of family violence or abuse that could affect the child’s safety.
• The willingness of each parent to support the child’s relationship with the other parent.

Types of Custody in Ontario

Ontario law recognizes various types of custody arrangements, depending on the level of parental involvement and the child’s needs. Even in a simple divorce, parents must determine which type of custody arrangement will work best for their family.

1. Sole Custody

• One parent has full decision-making authority regarding the child’s education, healthcare, and upbringing.
• The child primarily resides with the custodial parent.
• The non-custodial parent may have access rights or scheduled visitation but does not have a say in major decisions.

2. Joint Custody

• Both parents share the responsibility of making major decisions for the child.
• Joint custody does not necessarily mean equal parenting time.
• Communication and cooperation between parents are essential for this arrangement to work.

3. Shared Custody

• The child spends at least 40% of their time with each parent.
• Both parents are involved in decision-making and parenting responsibilities.
• Shared custody is more common when parents live close to each other and can co-parent effectively.

4. Split Custody

• This arrangement applies when there are multiple children, and each parent has primary custody of at least one child.
• Courts usually avoid split custody unless it is in the best interests of the children.

The Role of Parenting Agreements in a Simple Divorce

Even in an uncontested divorce, a parenting agreement is crucial for outlining each parent’s rights and responsibilities. A well-drafted parenting agreement should include:

• Custody and decision-making arrangements (sole, joint, or shared custody).
• Parenting schedules, including weekday and weekend routines.
• Holiday and vacation schedules.
• Communication rules between parents and with the child.
• Child support obligations.
• Conflict resolution mechanisms in case of future disagreements.

Parenting Time (Access) in a Simple Divorce

Difference between Custody and Parenting Time (Access)

Understanding the distinction between custody and parenting time is essential when finalizing divorce terms:

• Custody refers to the legal authority to make major decisions regarding the child’s welfare, such as education, healthcare, and religious upbringing. Custody can be sole or joint depending on the agreement between the parents or the court’s decision.
• Parenting Time (Access) determines how much time the child spends with each parent. Even if one parent has sole custody, the other parent may still be entitled to parenting time to maintain a relationship with the child.

In most cases, courts aim to ensure that the child maintains a meaningful relationship with both parents, except in situations where contact may not be in the child’s best interests (e.g., due to safety concerns).

Standard Access Schedules

When parents separate, they can agree on a parenting time schedule that works for both parties. If they cannot agree, the court may impose a standard access schedule, considering the child’s age, schooling, and best interests.

Common parenting time arrangements include:

• Weekend Visits: The non-custodial parent may have the child on alternate weekends (e.g., from Friday evening to Sunday evening).
• Midweek Visits: Some arrangements include a midweek visit for dinner or an overnight stay.
• Holidays & School Breaks: Parenting time is often divided during holidays such as Christmas, Thanksgiving, and March Break to ensure both parents have quality time with the child.
• Summer Vacation: Parents may alternate weeks or months depending on work schedules and the child’s activities.

Flexibility in parenting time is encouraged when both parents can communicate effectively and prioritize the child’s needs.

Supervised Access: When Required by the Court

In some situations, the court may order supervised access to ensure the child’s safety and well-being. This may occur when:

• There is a history of domestic violence or child abuse.
• A parent has a history of substance abuse that could endanger the child.
• There are concerns about a parent’s mental health or stability.
• There is a risk that the parent may abduct the child or fail to return them after visits.

Supervised access can take place at a designated centre or in the presence of a trusted third party, such as a relative or professional supervisor. The court may later modify this arrangement if it deems unsupervised access to be safe for the child.

Denial of Access and Its Legal Consequences

A custodial parent cannot unreasonably deny the other parent access to the child unless there is a court order stating otherwise. If a parent refuses access:

• The denied parent may file a court motion to enforce parenting time.
• The court may impose penalties on the parent restricting access without justification.
• In extreme cases, repeated denial of access can result in custody modification, where the court may reconsider the child’s living arrangements.

However, if there are genuine concerns for the child’s safety, the custodial parent should seek a court order to modify or restrict the other parent’s access.

Filing for a Simple Divorce When Children Are Involved

Required Parenting Plan for Child Custody and Support

Before filing for a simple divorce, parents must create a parenting plan that outlines how they will share responsibilities for their child’s care. This plan should include:

• Custody Arrangement: Whether it is sole, joint, shared, or split custody.
• Parenting Time Schedule: Weekday and weekend visits, holiday schedules, and summer vacation plans.
• Decision-Making Responsibilities: Who will make important decisions regarding education, healthcare, and extracurricular activities.
• Child Support: Payments calculated based on the Federal Child Support Guidelines to ensure the child’s financial needs are met.
• Dispute Resolution Method: A plan for handling disagreements, such as mediation or arbitration.

A clear and legally sound parenting plan is crucial, as courts will not grant a simple divorce unless proper arrangements for the children’s well-being are in place.

Forms to Complete When Filing for a Simple Divorce with Children

Even though a simple divorce is uncontested, parents must submit specific court forms to finalize the process and address child custody and support.

1. Form 8A – Application for Divorce

• This is the primary form used to apply for a simple divorce.
• It includes general details about the marriage, separation date, and child custody/support arrangements.
• If both spouses agree, only one spouse needs to sign and file this form.

2. Form 35.1 – Parenting Affidavit

• Required when the couple has children under 18 years old.
• This form outlines the proposed custody and parenting time arrangements.
• The parent completing the form must provide information about any history of family violence, past court proceedings, or concerns regarding the child’s safety.
• The court may reject a simple divorce application if this form is missing or incomplete.

3. Child Support Guidelines Form (If Applicable)

• This form ensures that child support is calculated according to Ontario’s Child Support Guidelines.
• The amount is based on the paying parent’s income, the number of children, and special expenses (e.g., daycare, medical costs, extracurricular activities).
• Courts will not grant a divorce unless proper child support arrangements are in place.

Importance of Ensuring Custody Arrangements Meet Ontario’s Legal Standards

When filing for a simple divorce with children, custody and support arrangements must comply with Ontario’s Family Law Act and the Divorce Act to protect the child’s best interests. The court will review all submitted documents to ensure:

• The parenting plan prioritizes the child’s emotional, physical, and educational needs.
• Both parents are involved in the child’s life unless there are valid safety concerns.
• The financial support provided meets legal requirements to ensure the child’s well-being.
• There are no unresolved custody disputes that would prevent the divorce from proceeding.

How Child Support Is Handled in a Simple Divorce

Child Support Guidelines in Ontario

The Federal Child Support Guidelines establish how child support is determined and ensure a standardized approach across the country. The guidelines consider:

• The income of the paying parent (gross annual income before taxes).
• The number of children who require support.
• The parenting arrangement (e.g., sole, joint, or shared custody).
• Special expenses (such as medical costs, daycare fees, and extracurricular activities).

These guidelines ensure that children maintain the same financial stability post-divorce as they would have if their parents remained together.

How Support Payments Are Calculated Based on Income

Child support payments are calculated using the Child Support Tables, which outline the amount a parent must pay based on their gross annual income and the number of children they support.

For example, under the 2024 Ontario Child Support Guidelines, if a paying parent earns $50,000 per year, the approximate monthly child support payments would be:

• 1 child: $461 per month
• 2 children: $753 per month
• 3 children: $978 per month

If shared custody applies (where each parent has the child for at least 40% of the time), the set-off method is used, where each parent calculates their support obligation, and the difference is paid by the higher-earning parent.

Ensuring Ongoing Financial Support for the Child’s Well-Being

Child support is not optional; it is a legal obligation that must be met until the child reaches the age of 18 (or longer if they are in full-time education or have special needs).

To ensure continued support:

• A child support order can be included in the divorce judgment.
• The Family Responsibility Office (FRO) in Ontario enforces support payments, ensuring compliance.
• Payments can be adjusted if a parent’s income changes significantly, requiring a modification of the child support order.

If a parent fails to pay child support, the FRO has enforcement powers, including:

• Garnishing wages and bank accounts.
• Suspending driver’s licences or passports.
• Placing liens on property.
  

When Court Intervention May Be Required

If Parents Cannot Agree on Custody in a Simple Divorce

Even in an uncontested divorce, parents must submit a legally valid parenting plan outlining custody arrangements. If they cannot agree on:

• Who will have custody (decision-making responsibility)
• The child’s primary residence
• The division of parenting time (access)
• Key decisions about education, healthcare, or religion

The court may be required to step in and make a ruling. The judge will assess the case based on the best interests of the child, as outlined in the Children’s Law Reform Act and the Divorce Act.

If there are disputes over child custody, the court may:

• Order temporary custody arrangements until a final decision is made.
• Appoint a parenting coordinator or a children’s lawyer to assess the child’s needs.
• Require an assessment from a psychologist or family professional to determine what is in the child’s best interests.

The Role of Family Mediation in Resolving Disputes

Before taking matters to court, Ontario encourages separating parents to use family mediation services to resolve disputes amicably. Mediation can help parents:

• Negotiate custody and parenting time arrangements with a neutral third party.
• Develop a parenting plan that is fair and practical.
• Reduce conflict and create a cooperative co-parenting relationship.

Mediation is often quicker and less expensive than litigation, and Ontario courts may require parents to attempt mediation before proceeding to a formal hearing. If mediation fails, a judge may be required to issue a court order.

Situations Requiring Court Rulings on Custody and Parenting Time

There are certain scenarios where court intervention is unavoidable, even in a simple divorce:

1. Concerns About Child Safety:
   • If one parent raises concerns about abuse, neglect, or domestic violence, the court may restrict or supervise parenting time to ensure the child’s safety.
2. Parental Alienation:
   • If one parent is deliberately interfering with the child’s relationship with the other parent, the court may intervene to enforce access rights or modify custody arrangements.
3. Relocation Disputes:
   • If a parent wants to move with the child to a different city or province, the court will assess how the move impacts the child’s well-being.
4. Failure to Follow Existing Parenting Orders:
   • If a parent consistently denies access or refuses to comply with an agreed-upon parenting plan, the other parent may seek a court enforcement order.
5. Parental Fitness Issues:
   • If one parent struggles with substance abuse, mental health concerns, or criminal activity, the court may require supervised visits or restrict custody rights.