Decision-making responsibility (formerly custody)

Decision-making responsibility (formerly custody) is about making major decisions about how to care for and raise your children. These decisions could include:

Health care
Religion or spirituality
Education

Decision-making responsibility is not about where the child lives. For example you could have sole decision-making responsibility and are the only decision maker, but your child lives part of the time with your ex and part of the time with you.

People often get confused by decision-making responsibility and parenting time (formerly access by a parent). Parenting time is when you have the right to visit—or be visited by—your children. It also means the right to get information on your child’s health, education and well being. For more information, please visit the parenting-time page. Contact (formerly access by a non-parent) is when you have the right to visit—or be visited by—a child.

Types of decision-making responsibility (formerly custody)

Sole decision-making responsibility: One parent cares for and makes decisions about the children on their own. The other parent may or may not have parenting time with the kids.
Joint decision-making responsibility: Both parents make decisions about the children together. It has nothing to do with how much time the children spend with each parent.
Shared decision-making responsibility: This type of custody has nothing to do with decision‑making but focuses on which parent the child lives with and when because this impacts how child support is paid.
Split decision-making responsibility: When one parent has decision-making responsibility for one or more children and the other parent has decision-making responsibility for the other children.

How is decision-making responsibility (formerly custody) decided?

The judge will use the “best interest of the child” test. The judge will look at:

the emotional ties between the child and the claimant
the views and preferences of the child
how long the child has lived in a stable home
how able and willing each claimant is to provide the child with guidance, education, and the necessities of life and to address the special needs of the child
any proposed plans for care and upbringing
how permanent and stable the proposed family unit is
whether that person can take on the roles and responsibilities of parenting
familial relationship between the child and each person who is party to the application

How can Legal Aid help?

Find out if you’re eligible for legal aid help.

If you qualify for legal aid help on your day at court

There are lawyers at the courthouse called duty counsel. They can help you with:

drafting and preparing documents for urgent or without notice matters or where you are unable to complete court documents because of mental or physical health or literacy issues
reviewing agreements from mediation
first appearance at court
first case conference for applications, responses and motions to change

There are Family Law Information Centres in most of the courthouses. A lawyer who can give you advice is known as family advice counsel. They can:

give you general information about how to choose a lawyer and how best to use the help of a lawyer
give you up to 20 minutes of advice and information about the court process and on family matters

If you qualify for a lawyer to represent you in court

We may cover the cost of a lawyer to help with your decision-making responsibility case if:

you or your child fear for your safety from your ex
the way your ex is behaving is hurting your relationship with your child
you worry that your ex will kidnap your child
you have recently separated and there is no decision-making responsibility or parenting time agreement between you and your ex

If you are a grandparent seeking decision-making responsibility or contact and you are financially eligible, we may cover the cost of a lawyer who will decide if your case has a good chance of succeeding.

If you don’t qualify for legal aid

JusticeNet is a not-for-profit service that provides an easy-to-use online directory of legal professionals who offer services to eligible clients at reduced rates. There is a $25 registration fee to access the directory.

For more information visit their website at justicenet.ca.

How do you start an application for decision-making responsibility (formerly custody) for a child?

Step 1: Prepare your court application form

You have to make the application for decision-making responsibility in the jurisdiction where your child usually lives.

You will need to complete the following forms:

Step 2: Get your application issued

Take at least three copies of all of your documents to the court clerks.

If you are going to the Ontario Court of Justice, go to the family counter.

If you are going to the Superior Court of Justice, take a number and go to the registrar’s office.

You will get your file number and a notice to attend a Mandatory Information Program session for both you and the other party. The session gives you an overview of family law issues and the family court process.

You can find more information on our page about starting a family court case.

Step 3: Serve your application

You must get someone else to give a copy of all the documents that you have filed with the court as well as the Mandatory Information Program notice and give them to the other party. You cannot serve these documents. You must have someone who is at least 18 years old—this could be a friend or family member or a professional server—hand deliver a copy to your ex.

You will also have to file proof that you have given these documents to the other party. This is called an affidavit of service.

For more information, please visit serving family court documents.

Step 4: Complete proof of service

Proof of service is known as an affidavit of service. It’s a document that shows that all the documents were successfully given to the other party.

The affidavit will list the time and date the documents were served, and also how it was served and who did the serving.

An affidavit of service is important. If the other party says they haven’t been notified, this affidavit proves that they were.

Complete Form 6B: Affidavit of Service Sworn/Affirmed.

Include any supporting documents. For example, if you mail a claim by registered mail, print off the delivery confirmation including the signature verifying the receipt from the Canada Post website. If you send it by courier, include the delivery confirmation with signature provided by the commercial courier company.

This form needs to be signed in front of a notary or a commissioner for taking affidavits. There is a fee of $21 for this service. If you need help finding a commissioner or notary to do this service, ask the court clerk for help.

Make sure you come to the commissioner with ID and the unsigned document.

Step 5: File your court documents

Take all of your original documents to the family court clerk and put them into your continuing record, which is a record kept at the courthouse with all of the documents that you have filed and want the court to look at.

You will have to update your table of contents, which is a list that includes every form and document that you have added to your court file.

If you’re unsure about anything, ask the clerk for help.

More information

CLEO: Separation and Divorce: Making Decisions and Spending Time With Children
Ministry of the Attorney General: Parenting time, decision-making responsibility and contact
Steps to Justice: Decision-making and time with children