Child Custody in Canada

When a relationship ends and children are involved, two separate legal questions arise: who makes major decisions about the child's life, and how much time does each parent spend with the child. These are not the same question, and Canadian law treats them separately.

What "Child Custody" Means in Canadian Law

The word "custody" no longer appears in the federal Divorce Act. The 2021 amendments replaced it entirely. If you are divorcing, the correct legal terms are:

This change applies only to the Divorce Act — that is, married couples who are divorcing. Unmarried couples separating are governed by provincial legislation, which may still use the old terms.

Provincial terminology varies significantly:

Federal vs. Provincial Jurisdiction: Which Law Applies to You

Which legal framework governs your situation depends on whether you were married.

Married couples divorcing: The federal Divorce Act applies. Courts issue parenting orders covering decision-making responsibility and parenting time. The Divorce Act applies uniformly across all provinces and territories — a parenting order made in Ontario is enforceable in BC.

Unmarried couples separating: Provincial or territorial legislation applies. In Ontario, this is the Children's Law Reform Act (CLRA). In BC, the Family Law Act. In Alberta, the Family Law Act. These statutes use different terminology and have different procedural rules.

A couple who lived together for 12 years in Ontario and separates cannot use the Divorce Act — they were never married. Their parenting dispute goes through Ontario's Children's Law Reform Act, which still uses "custody" and "access." The substantive test — best interests of the child — is the same, but the procedural rules and terminology differ.

How Courts Determine Parenting Arrangements

The governing principle in every Canadian jurisdiction is the best interests of the child. Under s. 16 of the Divorce Act, courts must consider:

• The child's physical, emotional, and psychological safety and well-being
• The nature and strength of the child's relationship with each parent, siblings, and other significant people in their life
• Each parent's willingness to support the child's relationship with the other parent
• The history of care — who has been the primary caregiver day-to-day
• The child's views and preferences, weighted by age and maturity
• Any family violence, including its nature, severity, frequency, and impact on the child
• The child's cultural, linguistic, religious, and spiritual upbringing and heritage

The 2021 amendments added family violence as a specific, named factor — not just direct violence against the child, but also the impact of violence between the parents on the child's safety and well-being. Courts must now make explicit findings about family violence before determining parenting arrangements.

Courts do not automatically favour mothers or fathers. A 2023 Statistics Canada report found that shared parenting time (40% or more with each parent) was the outcome in approximately 52% of resolved family court cases — up from 41% in 2012.

Types of Parenting Arrangements

Sole decision-making responsibility: One parent makes all major decisions about education, health care, religion, and extracurricular activities. The other parent typically still has parenting time. More common where there is a history of family violence, severe conflict, or one parent's demonstrated inability to cooperate.

Shared decision-making responsibility: Both parents must consult and agree on major decisions. Requires a functional level of communication. Courts will not impose shared decision-making where parental conflict is so severe that cooperation is impossible — forcing it in those circumstances harms the child.

Primary residence with scheduled parenting time: The child lives primarily with one parent; the other has scheduled parenting time — weekends, school holidays, summer breaks. The specific schedule is set out in the parenting order or parenting plan.

Equal parenting time (50/50): The child spends roughly equal time with each parent. Common schedules:

Equal parenting time does not automatically mean equal decision-making responsibility. These are separate questions answered separately in the parenting order.

Parenting Plans: What They Must Cover

Courts strongly prefer that parents agree on a parenting plan rather than having a judge impose one. A parenting plan is a written agreement that sets out:

• The regular parenting schedule (weekdays, weekends, school holidays)
• How holidays and special occasions are divided — Christmas, birthdays, March Break, summer
• How major decisions will be made and what counts as a "major decision"
• How parents will communicate with each other about the child (email, co-parenting app, in person)
• What happens if one parent needs to change the schedule
• Travel arrangements and consent requirements for international travel
• How disputes about the plan will be resolved

A parenting plan incorporated into a court order is legally enforceable through the court's contempt powers. Without a court order, a parenting plan is a contract — enforceable through civil proceedings, but not through contempt.

Parenting coordinators are available in Ontario and BC to help parents resolve day-to-day disputes without returning to court. A parenting coordinator is a mental health or legal professional appointed by agreement or court order. Their decisions on minor disputes are binding, subject to court review. Coordinator fees typically run $200–$400/hour, shared between the parents.

Child Support and Parenting Time: The Connection

Parenting time directly affects child support calculations. The Federal Child Support Guidelines set base monthly amounts based on the paying parent's income and the number of children.

Ontario table amounts, 2026. Amounts vary by province — each province has its own table under the Guidelines.

When a parent has the child 40% or more of the time — the "shared custody" threshold under s. 9 of the Guidelines — the standard table amount does not automatically apply. Courts must consider both parents' incomes, the actual costs each parent incurs, and the child's standard of living in each household. The result is often a set-off calculation: each parent's table amount is calculated, and the higher-income parent pays the difference.

Special or extraordinary expenses — licensed childcare, orthodontics, tutoring, competitive sports registration — are shared proportionally based on each parent's income, in addition to the base monthly amount.

Relocation: Moving with a Child After Separation

Relocation is one of the most litigated areas of family law. Under the Divorce Act (as amended in 2021), a parent who wants to relocate with a child must give the other parent 60 days' written notice before the planned move date.

The notice must include:

• The date of the proposed move
• The new address and contact information
• A proposed revised parenting plan

The other parent has 30 days to object in writing. If they object, the relocating parent must apply to court for permission before moving. The court applies the best interests test, with additional factors specific to relocation:

• The reason for the move (employment, family support, new relationship, lower cost of living)
• The impact on the child's relationship with the non-relocating parent
• Whether a revised schedule can maintain a meaningful relationship with both parents
• The child's existing ties to their community, school, and friends

Who bears the burden of proof matters:

If the relocating parent is the primary caregiver (the child spends the majority of time with them), the burden shifts to the objecting parent to show the move is not in the child's best interests.

If parenting time is roughly equal, the relocating parent must show the move is in the child's best interests.

A parent who moves without giving proper notice, or moves after the other parent objects and before getting a court order, risks a court order requiring the child's return — and a finding of contempt.

Enforcement When a Parent Doesn't Follow the Order

A parenting order is a court order. Violating it — refusing to return a child after scheduled parenting time, denying the other parent their scheduled time, or taking a child out of the country without consent — can result in:

• A finding of contempt of court (fines or imprisonment)
• A variation of the parenting order reducing the offending parent's time or decision-making role
• A police enforcement clause added to the order, allowing police to assist in returning the child
• Criminal charges under s. 282 (abduction in contravention of a custody order) or s. 283 (abduction) of the Criminal Code

International parental abduction is addressed through the Hague Convention on the Civil Aspects of International Child Abduction, to which Canada is a signatory. If a child is wrongfully removed to or retained in a member country, the left-behind parent can apply for the child's return through that country's central authority. The process is faster than a full custody hearing — courts in member countries are required to act expeditiously, generally within six weeks.