Court Parenting Orders: parenting time and decision-making responsibility of custody
When parents separate and can not agree on parenting arrangements, either parent can ask the court to make the decision for them. This decision is called a “parenting order”. The court must only consider the best interests of the child in making a decision about parenting time and decision making authority. For more information, visit the Best Interests of the Child section of this website.
What are parental responsibilities?
The Family Law Act defines “parental responsibilities” as “the responsibilities associated with the care of a child, including responsibilities associated with parenting time and decision-making responsibility, but not including the responsibility to pay child support.” Payment of child support is not included as this is a separate type of responsibility.
What are joint rights to exercise parental responsibilities?
The Family Law Act states that unless a parenting order specifies otherwise, parents have joint rights to exercise parental responsibilities with respect to their children unless the parents have never lived together after the child is born. If the parents have never lived together after the child is born, the parent that the child lives with is the only parent with decision-making responsibility and parenting time respecting the child. If the parents have lived together after the child is born, they both have decision-making responsibility and parenting time with respect to the child, unless the court makes a parenting order that allocates parenting time and decision-making responsibilities differently.
Custody order or Parenting order?
Under Manitoba’s new law, The Family Law Act, courts will no longer make “custody orders”. Instead, they will make “parenting orders” that address each parent’s “parenting time” and “decision-making responsibility”. The Family Law Act and the Divorce Act both address parenting arrangements with the same concepts and terminology to emphasize that arrangements respecting the care of their child or children is a continuing responsibility for parents and is not about parents’ rights to their children.
A “custody order” made under The Family Maintenance Act before that law was replaced by The Family Law Act on July 1, 2023 continues to be in effect according to the terms of the order and may be varied, terminated, or enforcement if necessary, as if the custody order was a “parenting order” made under The Family Law Act. To help with the transition from the “old” law to the “new” law, The Family Law Act, says at subsection 100(6) that orders and agreements between parents for child custody and access are to be interpreted under the new law as follows:
- a parent with custody of a child is deemed to have decision-making responsibility and parenting time with respect to the child;
- a parent with access is deemed to have parenting time with the child; and
- decision-making responsibility and parenting time are as described in the order or agreement respecting custody or access.
What is sole custody?
If a court order of sole custody to a parent was made under The Family Maintenance Act, that order would mean that the parent has sole decision-making responsibility and parenting time with respect to the child. They make the important decisions about the child’s education, extracurricular activities, health and religion, and the child lives most or all of the time with that parent.
A court order providing sole custody to one parent would usually include provisions giving the other parent “access”, the right to have contact with the child. What a general order of access or reasonable access means, depends on the arrangements the parents make between themselves. For example, it may mean that the child lives with the other parent two or three days a week, or that the child sees the other parent once a week. It will be up to the parents to decide what will constitute reasonable access in their situation.
Sometimes, especially when the parents have difficulty cooperating with one another, the court order may include specified access. This kind of order will lay out exactly when, and under what conditions, the other parent can have contact with the child.
When there is a great deal of tension and conflict between the parents or when there are safety concerns, the court order may specify that a third party be involved to make access easier (e.g., by helping with the pick-ups and drop-offs).
If there are real concerns about the behaviour of a parent during access, the court order may impose conditions. For example, if a parent engages in risky behaviour like drinking and driving while driving the children, the other parent can ask the court to prohibit that parent from consuming alcohol before or during any period of access, or prohibit that parent from driving with the children. Where there are genuine concerns about a child’s safety while in the care of a parent, the court order may specify that another person supervise the access.
Specialized services are available in Winnipeg and Brandon, with additional locations in Dauphin, Portage la Prairie, Flin Flon and Riverton, to supervise the pick-up and drop-off of children for purposes of access, or to supervise the access itself. For more information, contact:
Winnipeg Children’s Access Agency
Brandon Access Exchange Service (including Dauphin, Portage la Prairie, Flin Flon and Riverton)
The Family Maintenance Act specified that the non-custodial parent has the same right as the custodial parent to receive school, medical, psychological, dental and other reports about the child, unless a court orders otherwise. This is a right to information only. It is not a right to be consulted about or participate in decision-making about the child. The Divorce Act has a similar provision.
Can parenting time ever be denied by the Court?
In most situations, children have the right to spend time with both parents, regardless of how you feel about each other. In certain circumstances (e.g., when a parent abuses/neglects a child, or abuses alcohol or drugs), the court places conditions on the parent’s parenting time to keep the child safe when they are with that parent. For example, the court may order that the parenting time must be supervised, or that the parent must not consume alcohol during parenting time. The court will only deny parenting time in the most extreme cases.
Can changes to parenting orders be made?
Where there is a court order of parenting time or decision-making responsibilities and an important change occurs affecting a child, either parent may ask the court to change (vary) the order. Some examples would include:
- when a teenage child wants to spend more time with a parent than the court order allows
- when a custodial parent wants to change the access order, because the other parent is not caring for the child adequately during visits
- when a non-custodial parent wants access to be specified because the parents cannot agree on how often visits should take place.
If the parents can’t agree on changing the order, they may choose to attend mediation before asking the court to decide the issue. Please visit the Parenting section of this website for more information.
How does parenting time and decision-making responsibility impact moving or relocating?
When parents have a parenting plan (under a court order or not), neither parent has the right to move the child without the other parent’s consent, unless a court order provides otherwise. Even when the non-custodial parent only has specified access, the custodial parent should not move the child without the non-custodial parent’s consent.
In some cases, moving a child without the consent of a parent who has custody rights or specified access rights is a criminal offence and the offending parent may be charged with parental child abduction or breaching a court order. It is very important to consult a lawyer in these situations well before the move is to take place, as a court order may be necessary. For more information, visit the Enforcement section of this website.
Note that changes to the Divorce Act, which came into effect March 1, 2021, set out a framework to give guidance to parents and courts to help resolve disputes over relocation after separation and divorce. These will include:
- notice requirements for a proposed change of residence or relocation;
- additional best interests criteria for relocation cases; and
- principles to help assess whether the relocation should occur
- For example, based on how parental responsibility for the child is shared
What happens when one parent lives outside of Manitoba?
As a general rule, when the child lives in Manitoba, a parent who wants an order of parenting time or decision-making responsibility must apply to a Manitoba court. This is the case even if that parent lives outside Manitoba. In an application under the Divorce Act, a parent may make a claim for parenting, custody or access in a court in a province where one of the parents normally lives, even if the child does not live there. However, the court will usually transfer the proceeding to the province where the child normally lives.