Child Custody Lawyer Ontario – Comprehensive Guide to Custody Law, Parenting Time, Decision-Making, and Legal Rights

Child custody disputes can be one of the most stressful aspects of a separation or divorce. Parents in Ontario – including Toronto, Mississauga, Brampton, Scarborough and surrounding areas – need to understand how custody laws work to protect their children’s well-being. 

This in-depth guide, prepared by our team of Child Custody lawyers explains everything about Ontario’s child custody law: the types of custody arrangements, landmark courts case that still shapes decisions today, how courts decide the best interests of the child, and why hiring the best child custody lawyers can make all the difference. 

We’ll also discuss the role of mediation in resolving custody disputes, and highlight a landmark case that shaped custody law. By the end, you’ll have a clear understanding of child custody in Ontario – and know how to get professional help if you need it.

Need guidance from a trusted child custody lawyer in Ontario? Call Simple Divorce at 416-901-7992 for your free consultation.

Understanding Ontario Child Custody Law

Ontario’s child custody law is governed by the Divorce Act (RSC 1985, c 3 (2nd Supp)) and Children’s Law Reform Act (R.S.O. 1990, c. C.12). The guiding principle in all cases is the best interests of the child – not the preferences of parents.

Both the federal Divorce Act and Ontario’s Children’s Law Reform Act (CLRA) require judges to base any custody or parenting decision on what will best promote the child’s well-being.

There are no automatic preferences (for example, there’s no legal presumption that mothers always get custody or that time must be split 50/50). Instead, courts look at each family’s circumstances to decide which arrangement serves the child’s needs best. 

Ontario law also encourages children to have maximum contact with each parent when it’s consistent with the child’s best interest, meaning courts generally believe it’s good for kids to maintain a strong relationship with both parents as long as there are no issues of abuse or safety.

It’s important to note that Ontario applies two sets of laws depending on your situation: if you’re a married couple going through a divorce, the federal Divorce Act will apply; if you’re unmarried or separating without divorcing, Ontario’s CLRA applies. In practice, both laws are very similar after recent updates.

Custody vs. Decision-Making & Access vs. Parenting Time

What’s the difference between “custody” and “access,” and how do terms like “parenting time” and “decision-making responsibility” fit in? As of March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access,” replacing them with more specific terms like “parenting time” and “decision-making responsibility”. However, many people (and even some court forms) still use the word “custody” informally. In this article, we’ll explain both the old terms (custody, access) and the new terms (parenting time, decision-making responsibility) so you can understand all the lingo.

In summary, custody (old term) broadly covered both where the child lives and who makes decisions. Now, parenting time covers the time-with-child aspect, and decision-making responsibility covers the major decisions aspect. You might still hear “custody” used in everyday conversation or even some Ontario forms, but it’s important to clarify whether someone is talking about time spent with the child or decision-making authority – because those can be separate. For instance, it’s possible (and common) for parents to share decision-making responsibility (joint custody in old terms) while one parent has the majority of parenting time if that’s what works best for the child.

While the terminology has changed, many still use older terms informally. Here’s what the new language means:

• Parenting Time – Now, instead of “access,” the law refers to parenting time. Parenting time means the time a child is in the care of a parent, regardless of who has decision-making authority ←make nofollow and open a new window. If you have parenting time with your child, you are responsible for the child’s care during that time and you have the right to receive information about the child’s well-being←make nofollow and open a new window. Parenting time can be set out in a detailed schedule in a Parenting Plan or court order, covering weekdays, weekends, holidays, etc. Even a parent who used to be called the “access parent” now has defined parenting time.

• Decision-Making Responsibility – This replaces the term “custody” in new legal language. It refers specifically to the authority to make major decisions about the child’s life (such as healthcare, education, religion, and extracurriculars). Decision-making responsibility can be held by one parent alone (similar to sole custody) or shared between both parents (similar to joint custody). In some cases, parents might divide decision-making by topic (for example, one parent makes medical decisions while the other makes educational decisions), which is sometimes called parallel or divided decision-making.

Types of Child Custody Arrangements

Ontario law does not set out strict categories of custody that parents must choose from – every parenting arrangement can be a bit different, and the courts prefer the parents themselves come to an agreement on the parenting arrangement that is in the best interests of the child. 

However, there are common terms used to describe the general types of custody arrangements a family might have. Understanding these terms will help you communicate with your ex-partner, lawyers, or the court about what arrangement you want. The main types are sole custody, joint custody, shared custody, and split custody, which we explain below. (You might also hear about parallel parenting or bird’s nest custody in special situations – we’ll touch on those briefly.)

Sole Custody or Sole Decision Making Authority 

Sole custody means one parent has the exclusive right to make the important decisions about the child’s upbringing. In a sole custody arrangement, the child lives primarily with the custodial parent, and that parent is responsible for day-to-day care. The other parent (often called the non-custodial parent) will usually have scheduled parenting time (visitation), but they do not have decision-making authority over major issues. For example, if one parent is awarded sole custody, they will decide which school the child attends, what medical treatment they receive, what religion (if any) the child is raised in, and so on. The sole custodial parent is expected to inform or consult the other parent on major issues, but they have the final say. The non-custodial parent still has the right to be kept informed about the child’s health, education, and general welfare and typically enjoys regular parenting time (formerly access). Sole custody might be appropriate if the parents are unable to cooperate on decisions, if one parent has been largely absent or is unfit, or in high-conflict situations where joint decision-making is not workable.

Example: After a separation, if a court finds that the mother has been the child’s primary caregiver and the parents cannot communicate without fighting, the court might order sole custody to the mother. The father would still get generous parenting time (e.g. every other weekend and some holidays), but major decisions would rest with the mother. This can give the child stability in decision-making. (Keep in mind, even when one parent has sole custody, the best interests of the child remain the guiding principle – the custodial parent is not allowed to make decisions that are harmful or not in the child’s interest, and the order can be changed if circumstances warrant.)

Joint Custody or Joint Decision Making Authority

Joint custody means both parents share the decision-making responsibilities for the child. In a joint custody arrangement, neither parent has superior rights to make major decisions – they must confer and agree on important matters like the child’s education, health care, and religious upbringing. Joint custody does not necessarily mean the child’s time is split equally (that would be shared parenting time, discussed below). A child could primarily live with one parent (for instance, for school nights) and have weekends or frequent visits with the other, but the parents still equally share legal custody in terms of decisions. What defines joint custody is the shared decision-making, regardless of the time split.

Joint custody requires a certain level of cooperation and communication between parents. It works best when parents are able to put personal conflicts aside and focus on co-parenting. If parents share custody, they will need to discuss and come to agreement on issues like what school the child will attend, whether the child can undergo a certain medical procedure, or whether the child can participate in a particular religious ritual. Many separating couples strive for joint custody because it ensures both parents stay involved in the big decisions of the child’s life, which can be emotionally beneficial for the child – they feel supported by both mom and dad. Ontario’s family law has long recognized that joint custody can be appropriate if parents can cooperate; however, if the level of conflict is too high, joint custody may not be in the child’s best interest. In those cases, sole custody or a hybrid arrangement might be ordered instead, to avoid exposing the child to ongoing conflict.

Example: A Toronto couple agrees that even though their children will live primarily with the father due to schooling, they will have joint custody. Both parents will consult each other on all major decisions (education choices, major health decisions, etc.). They include a clause in their parenting plan that if they cannot agree on a major decision, they will attempt mediation before going to court. Day-to-day routine decisions (like bedtime or homework rules) are made by whoever the kids are with at the time, but anything significant must be discussed. This joint custody arrangement acknowledges that both parents have an equal role in guiding the children’s upbringing.

Shared Custody or Shared Parenting Time

“Shared custody” is a term often used informally to mean the child spends roughly equal time with each parent. Under the Divorce Act and Child Support Guidelines, shared parenting time has a specific definition – it usually refers to situations where each parent has the child at least 40% of the time. In other words, the child’s residential time is more or less balanced between both homes. Shared custody is also sometimes called shared parenting or joint physical custody. The key idea is that both parents are significantly involved in the child’s day-to-day life because the child lives with each of them almost equally.

It’s important to note that shared parenting time is not a separate legal status regarding decision-making – often, parents with a shared 50/50 schedule also have joint decision-making (joint legal custody). Or one parent could be the primary decision-maker while time is split 50/50, though that would be less common. The term “shared custody” mostly comes up in the context of child support: if each parent has the child at least 40% of the time, the Child Support Guidelines allow for adjustments to the support amount, since both parents are directly covering a significant share of the child’s expenses. Essentially, when parenting time is shared, child support may be reduced for the higher-paying parent because both are incurring costs of raising the child on a day-to-day basis.

Shared custody arrangements can be great for children in the right circumstances – the kids get to spend ample time with both mom and dad, which can help maintain strong bonds. It often works well when parents live relatively close to each other, so the child can go back and forth without long commutes or disruption to school. However, shared custody isn’t for everyone. It requires good communication and a cooperative spirit, as well as practical considerations (proximity, work schedules, the child’s temperament and needs). Ontario courts do not presume that a 50/50 split is automatically best – it truly depends on the child’s best interests. If one parent cannot handle the responsibilities or the parents cannot work together, a different arrangement might be preferable.

Example: A Mississauga couple with one 8-year-old child agrees to a shared parenting schedule: the child alternates weeks between mom’s house and dad’s house, and they share joint decision-making. This means each parent has the child about 50% of the time. They live in the same school district, so the child can ride the same school bus from either home. They use a co-parenting app to manage the schedule and share info about school events, so everyone stays on the same page. This kind of arrangement lets the child feel that both parents are equally involved in their daily life.

Split Custody (Split Parenting Time)

Split custody is a relatively unusual arrangement that applies only in families with multiple children. It means that the siblings are split up between the parents – for example, one parent has full custody of one child, and the other parent has full custody of another child. In terms of parenting time, each parent has the majority of time with at least one of the children. Decision-making is also split: each parent is the sole decision-maker for the child (or children) in their care. Essentially, each parent has sole custody of one or more of the kids, and they have access (visitation) with the other child(ren).

Courts are generally reluctant to separate siblings – the view is that, all else being equal, it’s usually in children’s best interests to be raised together so they can support each other and share their childhood. However, in some cases split custody can make sense. This might occur if the children are far apart in age or have a high-conflict relationship with one parent or even with each other. Sometimes an older teenager might have a strong preference to live with one parent while a younger child is better off with the other parent. The court will consider each child’s best interests individually in such cases; it’s possible the court finds Child A is best with Mom, and Child B is best with Dad. Split custody can also happen by mutual agreement of the parents, especially if the kids themselves have expressed specific wishes.

If split custody is ordered, each parent will be the primary caregiver for one child and will make the major decisions for that child. They will typically have a schedule for the siblings to spend time together, ensuring the children still maintain their brother/sister relationships. Child support in split custody cases is determined by offsetting the amounts – effectively each parent pays support for the child not in their custody, and the amounts are netted out.

Example: A Brampton family has two children: a 15-year-old son and a 9-year-old daughter. The son has been living with his dad and doesn’t want to move (he’s settled in his high school and has a strained relationship with mom). The daughter is very attached to her mom, who has been her primary caregiver. The parents agree to “split” – Dad will have sole custody of the son, and Mom will have sole custody of the daughter. Each will have generous access to the other child (e.g., the daughter visits Dad on alternate weekends, the son visits Mom on alternate weekends, and they ensure the siblings get together frequently). While not an ideal situation, this split custody arrangement respects the children’s individual needs and wishes in this unique scenario.

Comparison of Custody Types

To summarize the differences, here is a quick comparison chart of sole vs. joint vs. shared vs. split custody, including who has decision-making authority and how the child’s residence/time is usually arranged:

Note: In any of these arrangements, the parenting plan can be customized. Parents might use elements of different types (e.g., joint decision-making with a shared time schedule, or sole custody to one parent but with near-equal parenting time). The court’s focus is on the child’s needs, so the labels themselves are less important than the substance of the arrangement.

Other Terms: Parallel Parenting and Bird’s Nest Custody

For completeness, you may come across a couple of other parenting arrangement concepts:

• Parallel Parenting: This is a method often used in high-conflict situations. Parallel parenting isn’t about a time split or custody label, but rather an approach where each parent agrees to disengage from the other and parent their own time with minimal interaction. Each parent makes day-to-day decisions when the child is with them, and major decisions are still shared or divided by domain, but direct communication is limited to reduce conflict. Parallel parenting can be an overlay on joint custody when parents need to minimize contact with each other.
• Bird’s Nest Custody: In this arrangement, the children stay in one home and the parents rotate in and out. For example, the kids remain in the family home, and the parents take turns living there during their parenting time, but live elsewhere when it’s the other parent’s turn. This can provide stability for the kids (same home, school, bedroom) but requires parents to have a high level of cooperation and usually the means to maintain three residences (the nest plus each parent’s separate home). It’s often a temporary arrangement during transitions.

These arrangements are less common, but they show that Ontario courts and families have flexibility to craft solutions that work for them.

Ready to speak with an experienced child custody lawyer in Ontario? Call Simple Divorce today at 416-901-7992.

How Courts Determine the Best Interests of the Child

If parents can’t agree on a custody and parenting arrangement, a judge will decide for them. In doing so, the court’s sole consideration is the best interests of the child – a principle deeply embedded in both the Divorce Act and the Children’s Law Reform Act. But what does “best interests” actually entail? 

Courts refer to section 24(3) of the CLRA and section 16(3) of the Divorce Act. Factors include:

• Child’s needs and development stage
• Parent-child relationship strength
• History of caregiving
• Child’s views (if mature enough)
• Parent’s ability to cooperate
• Any history of family violence

These factors are analyzed holistically. No single issue decides the outcome. The law avoids parent-focused arguments – the child is always the priority.

Here are the key factors Ontario courts consider, explained in detail:

• The child’s needs, given the child’s age and stage of development. This includes the child’s physical, emotional, and psychological needs, and the importance of stability and continuity in their life. A younger child, for example, might need more day-to-day consistency or might have stronger attachment to a primary caregiver, whereas a teenager might need a different kind of support and can handle switching homes more easily.
• The nature and strength of the child’s relationship with each parent, as well as with siblings, grandparents, or any other important people in the child’s life. If one parent has been the primary caregiver, or if the child has a very close bond with a sibling or a grandparent, the court will consider how different arrangements might preserve or affect those bonds.
• Each parent’s willingness to support the child’s relationship with the other parent. Courts favor a parent who will foster and encourage a positive relationship between the child and the other parent – this shows the parent is putting the child’s interest above any personal animosity. Conversely, if a parent has been trying to poison the child against the other parent or refuses to allow contact for no good reason, that will reflect poorly on that parent’s custody case.
• The history of the child’s care. Who has been taking care of the child’s daily needs up to now? Courts look at who bathed and fed the child, who took them to appointments, who participated in school activities, etc. The status quo can be very important – judges often try not to disrupt a healthy existing caregiving arrangement without good reason, because continuity is usually beneficial to children (this is sometimes called the “principle of permanence and stability”).
• The child’s views and preferences, if they can be ascertained in a mature way. A child’s own wishes can be a factor, especially for older children or teenagers. Ontario does not set a strict age where a child gets to decide (even at 16 or 17 a child doesn’t get an absolute say in custody), but the court will listen to what the child wants in an age-appropriate manner. This might be done through the Office of the Children’s Lawyer or a Voice of the Child Report. The judge will give the child’s wishes due weight according to that child’s age and maturity – for example, a 14-year-old’s well-reasoned preference might carry significant weight, whereas a 7-year-old’s wishes would be considered with caution.
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage. Courts strive to respect a child’s background and identity. If maintaining certain cultural practices or a connection to the child’s community is important for the child’s identity, the judge will factor that in. For instance, if one parent can better ensure the child learns and speaks their ancestral language or follows important religious customs (and that’s something the child values), it might influence the arrangement.
• Any plans proposed for the child’s care. If each parent presents a parenting plan or proposal to the court, the judge will evaluate how each plan meets the child’s needs. A detailed, child-focused plan from one parent might be favored over a vague or unrealistic plan from the other.
• The ability and willingness of each parent to meet the child’s needs. This includes practical considerations (work schedules, living arrangements, support systems) and parenting skills. It’s not about which parent is richer; it’s about who can ensure the child is properly cared for. If a parent has mental health or addiction issues that impede their ability to care for the child, for example, that will be considered. On the flip side, a parent who has demonstrated dedication to the child’s well-being will have that weigh in their favor.
• The ability and willingness of the parents to communicate and cooperate with one another on matters affecting the child. High conflict between parents can be very damaging to kids. If one parenting arrangement (say, joint custody) would expose the child to constant conflict, the court might choose a different arrangement (perhaps sole custody to one parent) to shield the child. Judges look at whether the parents can put aside their differences enough to collaborate for the child’s sake.
• Any family violence between the parents or directed at the child, and its impact. The law explicitly requires courts to consider family violence. This doesn’t just mean physical abuse; it can include emotional abuse, coercive control, or any pattern of harmful behavior. If there has been violence, the judge must assess how it affects the child’s safety and well-being, and how it might affect the parenting arrangement (for instance, a parent with a history of violence might not be able to cooperate or might pose a risk to the other parent or child). The court will also consider whether requiring cooperation (like joint meetings or exchanges) is appropriate or if parallel parenting or supervised exchanges are needed in light of the violence.
• Any civil or criminal proceedings or orders relevant to the child’s safety and well-being. For example, if one parent is bound by a restraining order, on bail for a criminal charge related to domestic violence, or if there’s a child protection investigation, these are highly relevant to a custody decision.

All these factors are weighed together by the judge. No single factor decides a case; it’s a holistic assessment. The court’s goal is to craft an arrangement that best serves the child’s overall welfare. It’s worth noting that the court does not consider past conduct of a parent unless it’s relevant to their ability to parent (so things like adultery or lifestyle choices generally won’t matter, but things like a history of substance abuse or abandoning the child for a long period would matter).

Bottom line: When you present a custody case, you need to put forward evidence and arguments touching on these best-interest factors. For instance, to strengthen your case, you would want to demonstrate how you have been meeting the child’s needs, how you encourage the child’s relationship with the other parent, how you plan to care for the child, and so on. A qualified child custody lawyer can help gather the relevant evidence (like school records, witness statements, etc.) to show the court that your proposed plan is truly best for your child.

Navigating custody matters? Speak to our experienced family law team. We serve Toronto, Mississauga, Brampton, Scarborough, and the entire Greater Toronto Area.

Why Hire a Child Custody Lawyer in Ontario

Going through a custody battle or negotiating a parenting arrangement can be overwhelming. You might wonder if you really need a lawyer or if you can handle it yourself. While there’s no legal requirement to have a lawyer, there are significant benefits to hiring an experienced child custody lawyer to assist you:

• Knowledge of Family Law and Procedure: Ontario’s family laws and court procedures can be complex. A skilled lawyer understands the legal standards and paperwork inside out. They will ensure you meet all deadlines, file the correct forms, and follow required procedures. This prevents costly mistakes. Lawyers also know how to apply the law (like those best-interest factors) to the facts of your case to make a compelling argument on your behalf. If you were to represent yourself, you might not even know what evidence is considered relevant, but a lawyer will know how to gather and present the right information.
• Objective Advice and Strategy: Child custody fights can be emotional. It’s easy for parents to get caught up in anger or fear, which can cloud judgment. A lawyer provides a level-headed, objective perspective. They can advise you on when it’s wise to settle and when to be firm, what battles are worth fighting, and how a judge might view your case. They’ll develop a legal strategy focused on achieving the best outcome for you and your child. This might involve negotiation, proposing creative solutions, or, if necessary, preparing strong court submissions. An experienced custody lawyer has seen many cases and can predict potential issues and how to address them.
• Protecting Your Rights: One of the most important reasons to hire a family lawyer is to make sure your rights as a parent are protected. The stakes are incredibly high – you could risk losing significant time with your child or decision-making authority if things go wrong. A knowledgeable lawyer will advocate forcefully so that you don’t inadvertently give up rights or agree to an unfavorable arrangement. They’ll also protect you from the other party’s or opposing lawyer’s tactics that might undermine your position. If your ex has hired a lawyer, you absolutely should too, to ensure a level playing field.
• Negotiation and “Child Custody Lawyers Near Me” Expertise: Most custody disputes in Ontario are settled by agreement, not by a judge’s order – but those agreements often come about after intense negotiation or through mediation (with lawyers advising in the background). A good child custody lawyer is also a skilled negotiator. They can communicate with your ex or their lawyer to seek a settlement that meets your needs, using persuasive arguments grounded in law and facts. They’ll also be familiar with the local court expectations and practices (important if you searched for “child custody lawyers near me” – a local Ontario lawyer will know, for example, how a particular family court tends to approach certain issues, or what a specific judge has ruled in the past). Local experience can be a big advantage in crafting arguments and settlement proposals that are likely to be accepted.
• Improved Chances of a Favorable Outcome: Simply put, having a top-notch lawyer often improves your chances of a winning result. Your lawyer will help you avoid pitfalls (like inadvertently saying something in court or over email that can be used against you) and will gather evidence to support your case (for instance, getting school records or doctor’s notes to show you’ve been an involved parent, or evidence of the other parent’s harassment if relevant). When the court sees you have a reputable lawyer, it signals that you are taking the matter seriously and have your case organized. Judges appreciate when parties are well-prepared (it makes their job easier), and a lawyer will ensure that. As one Toronto family law firm noted, “There is a much higher chance of success when you hire a divorce lawyer than not,” because an experienced lawyer can present a strategic case and demonstrate to the court that your position is reasonable.
• Reducing Stress: Battling over your kids is incredibly stressful. A lawyer can take on a lot of that burden – handling filings, communicating with your ex or their lawyer, and generally guiding you through the process. This allows you to focus more on your children and personal well-being rather than worrying about legal technicalities. You’ll have peace of mind knowing a professional is looking out for your interests.

In sum, working with the best child custody lawyers you can find will help ensure you’re doing everything possible to achieve a positive result. At Simple Divorce, for instance, our experienced family lawyers have handled countless custody cases in the Greater Toronto Area and know how to navigate the system efficiently and effectively. We aim to be not just your legal counsel but also a source of support during a difficult time. Every family is unique, so we tailor our strategy to your specific circumstances – whether that means being aggressive in court to protect a child from harm, or being creative in crafting a flexible co-parenting schedule that both parties can agree to.

Cost concerns? Some people worry they can’t afford a lawyer, but remember that the cost of losing custody or entering a bad agreement can be far greater in the long run. That said, many family lawyers (including our firm) offer affordable flat fees or payment plans, and an initial consultation to discuss your case. Considering what’s at stake – your relationship with your child – getting legal help is an investment in your family’s future.

Ready to speak with an experienced child custody lawyer in Ontario? Call Simple Divorce today at 416-901-7992.

The Role of Mediation in Child Custody Disputes

Not every custody case has to be a battle in court. Ontario strongly encourages parents to resolve parenting arrangements amicably whenever possible, and one of the best ways to do that is through mediation. Mediation involves a neutral third-party (the mediator) who helps parents negotiate and reach their own agreement on custody and parenting time. Here’s why mediation can be extremely beneficial in child custody disputes:

• Focus on the Child, Not the Fight: A good mediator will keep both parents focused on the needs of the children, rather than on past conflicts between the adults. Mediation sessions are structured to be about problem-solving – for example, figuring out a schedule that works for everyone – instead of blaming each other for what went wrong in the relationship. This child-centered approach can lead to more thoughtful, stable parenting arrangements. In fact, mediation tends to have a high success rate, precisely because parents craft solutions tailored to their family.
• Less Conflict and Stress: By its nature, mediation is more peaceful than litigation. It happens in a private office or even via Zoom, not a public courtroom. There are no aggressive cross-examinations or accusations flying – the mediator ensures each party speaks in turn and keeps things civil. This environment often reduces stress and anxiety. It also sets a better tone for future co-parenting. Parents who mediate successfully often have a more cordial working relationship after the separation, which is obviously better for the children in the long run (kids do best when mom and dad aren’t at each other’s throats).
• Cost-Effective and Faster: Mediation can be far cheaper and quicker than a court fight. Court proceedings can drag on for months or years, with hefty legal bills. Mediation, on the other hand, might be resolved in a few sessions over a couple of weeks. In many Ontario jurisdictions, there are even free or subsidized mediation services available (for example, On-site mediation at family court for immediate issues, and off-site mediation for more in-depth discussions)ontario.ca. Reaching an agreement out of court means you avoid the significant costs of trials and multiple motions.
• You Control the Outcome: In mediation, you – the parents – decide the agreement, not a judge. You have the final say in what the parenting plan looks like. This is a big advantage because you know your children and your schedules better than any judge would. Mediation allows for creative solutions that a court order might not provide. For instance, you could agree to a trial period of a certain schedule, or include very detailed provisions about holidays, or agree on communication methods – things judges sometimes skip. When parents craft their own agreement, they are often more satisfied and more committed to following it, as compared to an imposed court order.
• Confidential and Private: Mediation is a private process. What’s said in mediation stays in mediation (it’s generally “without prejudice,” meaning offers or admissions made during mediation can’t be later used in court). This encourages open discussion. It also keeps your personal matters out of the public record. Some parents feel more comfortable discussing sensitive issues (like parenting shortcomings or mental health concerns) in a confidential setting rather than a courtroom.
• Introduces Cooperation Skills: The mediation process can actually improve how you communicate with your ex. The mediator might introduce tools or techniques for better communication – for example, using a shared calendar for the kids, or ground rules for speaking respectfully. Even after mediation, parents can use these skills in future interactions. Think of it as a way to “reset” the parenting relationship onto a more constructive path.

In Ontario, mediation can be accessed through community centers, private mediators, or court-connected services. In fact, family courts often require parties to at least attend a mediation information session early in the case. Some agreements reached in mediation can be made binding by turning them into a consent court order or a separation agreement with the help of lawyers.

It’s worth noting that having a lawyer and using mediation are not mutually exclusive. Many people consult their child custody lawyer before and after mediation sessions. A lawyer can advise you on what a fair arrangement might be, and can even help you understand what to propose or agree to in mediation. If mediation is successful, your lawyer can help draft the final agreement in proper legal language. If mediation fails, then you still have the litigation route available – and your lawyer will be prepared to take your case forward.

Mediation isn’t appropriate in every situation. If there’s a history of domestic violence or a serious power imbalance (e.g., one spouse intimidates the other), mediation might not be viable unless special steps are in place to ensure safety and fairness. However, even in some high-conflict cases, shuttle mediation (where the parties are in separate rooms and the mediator goes back and forth) can be used.

In summary, mediation is a valuable tool to resolve custody disputes in a less adversarial way. It often leads to outcomes that are better for the children and more satisfactory for parents. At Simple Divorce, we typically explore mediation or other Alternative Dispute Resolution methods first, before resorting to court, because an agreed solution can save everyone time, money, and stress. Our lawyers can guide you on whether mediation might work for your case and refer you to qualified mediators in the Toronto area. Remember, even if you start in mediation, you still have the right to get legal advice and you won’t be forced into any agreement – it only becomes binding if both parties sign off.

Landmark Case Spotlight: Gordon v. Goertz (1996)

To understand how custody law is applied in real life, it helps to look at a famous case that set a precedent. One of the most important Supreme Court of Canada cases involving child custody (and one that originated from an Ontario dispute) is Gordon v. Goertz (1996). This case is frequently cited whenever a parent wants to move or relocate with a child – but its principles apply broadly to how courts assess the child’s best interests, especially in difficult situations.

Background: In Gordon v. Goertz, the parents had a young daughter. After the divorce, the mother had custody and the father had generous access. A couple of years later, the mother wanted to move from Saskatchewan to Australia to attend school and get support from her new husband. The father opposed the move, as it would drastically reduce his time with the child. This led to a court battle over whether the move (and effectively a change in the custody arrangement) should be allowed. The case eventually reached the Supreme Court of Canada.

The Supreme Court’s Ruling: The Supreme Court in Gordon v. Goertz established a clear framework for these “mobility” cases, which has influenced all custody matters in Canada. First, the Court said that when one parent seeks to vary a custody order (for example, to relocate the child), they must show a material change in circumstances affecting the children. In this case, the move to Australia was a material change, so the court could re-examine custody. Once a material change is proven, the judge must conduct a fresh inquiry into the best interests of the child, as of that time. No presumption will apply – meaning there’s no automatic bias for or against the move, or for the parent who has custody – the decision is a pure best-interests analysis.

The Supreme Court laid out a list of factors a judge should specifically consider in a relocation scenario, on top of the usual best-interest factors we discussed earlier. These included:

1. The existing custody arrangement and the relationship between the child and the custodial parent (before the proposed move).
2. The existing access arrangement and the relationship between the child and the access parent.
3. The child’s views (if applicable).
4. The impact of the move on the child, including the disruption to the child of a change in custody if the move isn’t allowed, or the disruption of moving far from their current community if the move is allowed.
5. The reason for the move insofar as it might affect the child (the Court said the parent’s reason for moving is generally not scrutinized unless it ties into their ability to care for the child – for example, moving to pursue education or a job might improve the parent’s ability to provide, and thus benefit the child)

Crucially, the Supreme Court emphasized that the best interests of the child is the only test, and “the judge should consider all relevant factors” with the child’s perspective at the center. The outcome should not be about punishing or rewarding either parent. It’s not about the rights of the parents at all, but about the child’s right to have an arrangement that best meets their needs.

Outcome: In Gordon v. Goertz, after applying these principles, the Supreme Court ultimately decided in favor of the mother’s move (meaning the child moved to Australia with her). The father’s access was adjusted (it became less frequent but longer blocks of time, including summers and holidays, and the court expected the mother to facilitate generous contact). The case underscored that a loving parent’s desire to relocate for valid reasons, while important, will be weighed against the child’s interest in continuity and contact with the other parent. There was no automatic rule like “custodial parent always wins” or “move only if the other parent consents” – it was a nuanced decision based on the specifics.

Why it’s Significant: Gordon v. Goertz is a landmark because it provided guidance not just for relocation cases, but it reinforced several broader points in custody law:

• It affirmed that custody arrangements can be varied when things change, but only if the change genuinely impacts the child. This prevents people from relitigating custody without a good reason. But it also means custody isn’t set in stone – if life circumstances shift, the arrangement can be revisited in light of the child’s best interests at that new time.
• It rejected presumptions in favor of either parent, solidifying the idea that each case must be determined on its own facts, with no built-in bias. Before this case, some courts leaned towards presuming the parent with custody could move (“maternal autonomy” idea) or, conversely, some thought there should be a heavy onus on the mover to justify it. Goertz said no to presumptions – just look at best interests.
• It illustrated how courts approach tough scenarios: Both staying and moving had downsides for the child, so the court had to decide which option was least disruptive and most beneficial in the long run. This balancing act is something courts do in all kinds of disputes (not just moves) – e.g., if neither parent is perfect, who is better; or if each proposed plan has pros and cons, which plan serves the child more.

For parents in Ontario, Gordon v. Goertz serves as a reminder that if you plan to relocate or if your ex is proposing a move, the issue will hinge on a fresh best-interests analysis. You would need to present evidence of how the move (or preventing the move) would affect your child. Family lawyers often use this case to argue their side in mobility disputes. For example, if we represent a parent opposing a move, we’ll highlight the importance of the child’s relationship with our client (factor #2 above) and the disruption the move would cause. If we represent the moving parent, we’ll emphasize how the child will benefit from the opportunities at the new location and that modern technology can maintain the parent-child bond across distance, etc., all framed in the context of Goertz factors.

Other Notable Cases: While Gordon v. Goertz is a key Supreme Court case, there are others worth mentioning briefly. Young v. Young (1993) was another famous case, dealing with a non-custodial parent’s rights during access – specifically, a father’s right to involve his children in Jehovah’s Witness religious practices against the custodial mother’s wishes. The Supreme Court in Young held that the access parent’s activities could be limited by the custodial parent or court if they were not in the children’s best interests (the children in that case were experiencing stress). It underscored that even access parents don’t have absolute rights if those rights are exercised in a way that harms the child. The Court stated that the best interests test is “value-neutral” and focused on protecting the child over any parental freedoms. This case is often cited when parents clash over upbringing issues like religion or lifestyle during visits.

Between Young and Goertz, Canadian courts have a strong foundation: always look at the situation through the child’s eyes and make the decision that minimizes harm and maximizes the child’s healthy development.

Contact Simple Divorce for Help

Navigating child custody law in Ontario can be challenging – but you don’t have to go through it alone. Simple Divorce is a trusted family law firm servicing clients in Toronto, Mississauga, Brampton, Scarborough, and the surrounding GTA. Our experienced child custody lawyers understand the nuances of Ontario law, from the Divorce Act’s latest amendments to the local court practices in the Greater Toronto Area.

We believe in making the process as straightforward and “simple” for you as possible, without ever sacrificing quality or care. Whether you are seeking to negotiate a fair parenting plan, need strong representation in a custody trial, or require guidance on a complex issue like relocation or enforcement of an order, our team is here to assist. We pride ourselves on being approachable, empathetic, and results-driven – our goal is to protect your rights as a parent and, most importantly, to promote the best interests of your children.

Take the Next Step: If you have questions about your custody case or need legal support, we encourage you to reach out to Simple Divorce for a free initial consultation. We’ll listen to your story, assess your case, and provide clear advice on your options and the road ahead. Many clients tell us that after just their first consultation, they feel a weight lifted off their shoulders – that’s because gaining knowledge and having a plan makes a huge difference.

Don’t let confusion or fear hold you back from getting the outcome you and your child deserve. Call us at 416-901-7992 or email info@simpledivorce.ca to speak with a member of our team. You can also visit our website and fill out a contact form to schedule an appointment. 

Together, we can navigate your child custody matters and move toward a brighter future for you and your children. (Remember, the sooner you get legal advice, the better prepared you’ll be to make informed decisions.)

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We’re here to help you protect your parental rights and prioritize your child’s well-being.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For advice specific to your case, consult a licensed family lawyer in Ontario.