Sole Decision-Making Responsibility and No Parenting Time: The Result of a Four-Day Family Trial

AJ Law Professional Corporation recently completed a four-day trial in a contested parenting case. Our client sought sole decision-making responsibility for her child — what was formerly called sole custody — and asked the court not to order parenting time for the respondent father. The court granted both: sole decision-making responsibility to our client, and no parenting time for the respondent.

An order of that kind is not common. Courts begin from the position that a child benefits from a relationship with both parents, and the great majority of contested cases end in some form of shared decision-making or, at a minimum, supervised or structured parenting time. Where a court declines to order parenting time at all, it is because the evidence before it, tested at trial, established that this was what the child's best interests required.

The Language Has Changed — the Questions Have Not

Since March 2021, the Divorce Act and Ontario's Children's Law Reform Act no longer use the words "custody" and "access." The terms are now decision-making responsibility — the authority to make significant decisions about a child's health, education, culture, language, religion and significant extra-curricular activities — and parenting time, the time a child spends in the care of each parent.

The change was more than cosmetic. "Custody" invited parents to think of children as something to be won. The current language asks a narrower and more useful question: who decides what, and when is the child with whom. Many people still search for and speak about "sole custody," and we use the phrase here for that reason, but the order a court makes today is framed in the newer terms.

The Only Test Is the Child's Best Interests

A court deciding parenting issues may consider only one thing: the best interests of the child. That is the whole of the test under section 16(1) of the Divorce Act, which applies to married spouses, and section 24(1) of the Children's Law Reform Act, which applies to parents who were not married.

Within that test, the legislation gives the court a primary consideration: the child's physical, emotional and psychological safety, security and well-being. Every other factor is weighed, but that one comes first.

The statutes then set out the factors the court must consider, which include the child's needs given their age and stage of development; the nature and strength of the child's relationship with each parent and with others who play an important role in their life; each parent's willingness to support the development and maintenance of the child's relationship with the other parent; the history of the child's care; the child's views and preferences, given due weight according to age and maturity; each parent's ability and willingness to care for and meet the needs of the child; and the ability and willingness of the parents to communicate and co-operate with one another on matters affecting the child.

Where family violence is alleged, the court must also consider its nature, seriousness and pattern, whether it is directed at the child or at another family member, whether it is recent and whether it is likely to continue, and what it reveals about a person's ability and willingness to care for and meet the needs of the child.

Two points about this framework are frequently misunderstood. The first is that there is no presumption of equal parenting time. Section 16(6) of the Divorce Act requires the court to give the child as much time with each parent as is consistent with the child's best interests — which is not the same thing as a starting point of an equal split. The second is that conduct unrelated to parenting is irrelevant: the court is not there to judge the adults' behaviour towards each other except insofar as it bears on the child.

Why a Four-Day Trial

Most family matters resolve without a trial, and most should. Trials are expensive, slow and hard on the people in them. But where the safety or well-being of a child is genuinely in issue, and no agreement can be reached that protects the child, a trial is the only mechanism the system has for deciding whose evidence is to be believed.

Four days of hearing means witnesses examined and cross-examined, documents put in evidence and tested, and submissions on the law. Cases of this kind are not won by argument on the final day. They are won in the months beforehand: by assembling a complete documentary record; by obtaining the third-party material that corroborates or contradicts what each parent says; by preparing a client to give evidence clearly and withstand cross-examination; and by identifying, in advance, precisely which findings of fact the court must make in order to grant the order sought, and what evidence will support each one.

A judge cannot make a finding that nothing in the record supports. The work of a parenting trial is making sure that every finding the order depends on is properly before the court.

What This Means If You Are in a Parenting Dispute

If you are seeking sole decision-making responsibility, or asking the court to restrict or withhold parenting time, understand that the court will require evidence directed at the child's best interests — not at how the other parent has treated you. Keep records. Preserve messages and documents rather than deleting them. Do not withhold a child from the other parent without a court order or legal advice, because a parent who acts unilaterally often damages their own case.

If you are responding to such a claim, the position is the mirror image: the evidence of your care of and relationship with your child is what matters, and it needs to be assembled properly rather than asserted.

Speak With Us About Your Parenting Case

AJ Law Professional Corporation acts for parents in contested decision-making and parenting-time matters in Ontario, from first court attendance through to trial. If you are facing a parenting dispute, or an existing arrangement is no longer protecting your child, contact us for a confidential consultation and we will tell you what the case will require.

Every case turns on its own facts. Past results are not a guarantee of future outcomes. This article describes the general law and the outcome of one matter; identifying details have been omitted. Nothing here is legal advice.