Form 35.1 Ontario Explained: Decision-Making, Parenting Time, and Safety Disclosures

In the landscape of Ontario family law, procedural rules are more than just red tape. They are the framework designed to ensure child safety and fair decision-making. Among these, Form 35.1: Affidavit (Decision-Making Responsibility, Parenting Time, Contact) stands as the most critical document for any parent entering the Ontario family court system.

At Nihang Law Professional Corporation, we frequently guide clients through the complexities of family litigation. A common question we encounter is: “Is this long affidavit really necessary?” The answer is a resounding yes.

Whether you are seeking a divorce, separation, or a modification to an existing parenting plan, Form 35.1 is mandatory. Without it, the court doors are effectively locked.

This blog explores why this form is the “gatekeeper” of family court, the legislative shifts that shaped it, and the serious consequences of failing to take it seriously.

What is Form 35.1 in Ontario?

Form 35.1 is an affidavit (a detailed and sworn statement) that provides key evidence for claims seeking parenting orders — decision-making responsibility, parenting time, or contact—in Ontario family court.

It is not merely a bureaucratic form where you check boxes. It is a narrative document where you must detail your proposed plan for your child’s care and upbringing.

Specifically, the form requires you to provide evidence under oath regarding:

• Your Plan: How you propose to handle decision-making and parenting schedules.
• Your Background: Your history of caregiving and relationship with the child.
• Safety Factors: Critical disclosures regarding domestic violence, criminal history, and child protection involvement.

Since it is an affidavit, it has the same legal weight as testifying in a courtroom. It is a key early document the judge relies on to assess the child’s best interests and safety issues, particularly at the outset of a case and on interim steps.

The “Gatekeeper” of Family Court: Why You Can’t File Without Form 35.1

Form 35.1 is not optional. Per Rule 35.1 of the Family Law Rules, it is mandatory. This rule dictates that any person making a claim for decision-making responsibility (formerly custody) or parenting time (formerly access) must file this affidavit at the same time as their application or answer.

The rule is strictly enforced by court clerks. Unlike other procedural hiccups that a judge might overlook or fix later, a missing Form 35.1 results in an immediate administrative rejection. Rule 35.1(6) explicitly instructs clerks not to accept a document for filing if it is not accompanied by the requisite affidavit and any required attachments (such as Form 35.1A and, in some cases, a police records check or proof that it was requested).

Why is the court so strict about the Form 35.1? It needs immediate and sworn evidence regarding the child’s safety. The form acts as a preliminary screening tool to ensure that no file involving a child is opened without the judge having immediate access to information about domestic violence, criminal history, or child protection involvement. This “safety-first” approach ensures that the “Best Interests of the Child” are prioritized from the onset.

Decoding the New Language: Decision-Making vs. Parenting Time

To fill out Form 35.1 correctly, you must understand the language of the law. On March 1, 2021, changes to the Divorce Act (and corresponding updates to Ontario terminology and court forms) shifted the language from “custody” and “access” to decision-making” and “parenting time.”

1. Decision-Making Responsibility (formerly Custody)

Decision-making responsibility, which was formerly and still more commonly known as custody, refers to the authority to make significant decisions about a child’s well-being, such as health care, religion, education, and significant extracurricular activities. Form 35.1 requires you to propose a plan: will you make these decisions alone (sole custody), or in consultation with the other parent (joint custody)?

2. Parenting Time (formerly Access)

Parenting time, which was formerly and more commonly known as access, describes the time a child is in the care of a parent. It is distinct from decision-making. A parent with zero decision-making power may still have significant parenting time. The form requires you to lay out a specific schedule rather than vague promises of “reasonable access” (e.g. for example, a “2-2-5-5” rotation or alternating weeks).

3. Contact (for Non-Parents)

Grandparents or other extended family members may apply for a contact order. In Ontario, a police records check is required where a non-parent is applying for decision-making responsibility (not simply because a non-parent is seeking contact), and the Rules set timelines for requesting and filing it. The police records check must be recent (within 60 days), and if it isn’t available when starting the case, the Rules set deadlines for providing proof it was requested and then filing it once received.

The Safety Net: Disclosing Violence and CAS History

Form 35.1 serves as a safety net. It forces full disclosure on uncomfortable but important topics.

Family Violence

You must disclose if you or the other party has committed violence against a spouse, a child, or any member of the household. This includes physical, sexual, financial, and psychological abuse. Nihang Law advises clients to be specific and factual here—general allegations are less effective than detailed accounts with dates and police report numbers.

Child Protection (CAS) Involvement

The form asks if a Children’s Aid Society (CAS) has ever been involved with your family. If the answer is “Yes,” you must complete an additional document: Form 35.1A. This form is sealed and confidential, accessible only to the judge and the parties, ensuring that the court is aware of any protection concerns without making them a public record.

FAQ: Do We Need Form 35.1 for a Consent Order?

Q: My ex and I agree on everything. Do we still need to file this long affidavit?

A: Generally, yes. Even when parents submit a “Consent Motion to Change” or a joint application, the court has an independent duty to ensure the arrangement is in the child’s best interests. A judge cannot simply rubber-stamp a parenting plan without evidence that the child is safe.

Even on consent, the court must be satisfied that the proposed parenting arrangement is in the child’s best interests and that there are no safety concerns that would make the order inappropriate. In many cases, this means Form 35.1 (or another affidavit covering the same safety and parenting factors) must be on the record, particularly if Form 35.1 has not already been filed in the case.

FAQ: What Happens If I Don’t Disclose Everything?

Q: I have a criminal charge from years ago. If I leave it off the form, will anyone find out?

A: Omission is a dangerous strategy. Form 35.1 is a sworn statement, meaning it has the same legal weight as testifying in court.

1. Striking of Pleadings: If the court finds you have willfully withheld material information (like a criminal charge or CAS history), they can strike your pleadings. This means your documents are removed from the file, and the case proceeds as if you never showed up, often resulting in the other parent getting exactly what they asked for.
2. Credibility Damage: Family law judges value honesty above all else. If you are caught in a lie on your affidavit, your credibility is destroyed. A parent who admits to a past mistake and explains their rehabilitation is viewed far more favourably than one who tries to hide it.
3. Mandatory Updates: Your duty to disclose doesn’t end when you file. Rule 35.1(7) requires you to immediately file an updated affidavit if your circumstances change (e.g., a new charge, a move, or new CAS involvement).

How We Can Help You Navigate the Family Court Process

Family law proceedings in Ontario can be confusing, especially if you don’t know the process. Whether you are dealing with a straightforward parenting plan or a complex high-conflict dispute, our Ontario family law team manages the heavy lifting so you can focus on what matters most—your children.

Here is how we support parents and guardians:

1. Preparing & Filing the Application: We handle the entire court application process, including drafting the necessary forms (Form 8 and Form 35.1) and ensuring all affidavits are sworn correctly to minimize the risk of rejection by the court.
2. Detailed Affidavit Drafting: We assist with the critical task of articulating your parenting history and plan in Form 35.1, ensuring that your narrative meets the “Best Interests of the Child” legal standard and withstands judicial scrutiny.
3. Safety & Compliance: From obtaining police record checks for non-parents to navigating Form 35.1A disclosures, we guide you through the strict safety requirements of the Children’s Law Reform Act.
4. Strategic Representation: Before a judge makes a final decision, we advocate for your proposed parenting time and decision-making model, ensuring your voice is heard in court conferences and motions.
5. Modifying Orders: If your circumstances change, we represent you in the formal process to update your parenting orders, ensuring they continue to serve your child’s needs.

Secure Your Children’s Future with Nihang Law

Representing yourself in family court is a significant responsibility with potential long-term consequences if documents are handled incorrectly. You don’t have to navigate these complex provincial rules alone.

At Nihang Law, we provide compassionate and expert guidance to parents across the Greater Toronto Area. Whether you are dealing with a standard divorce in Ontario, a consent motion, or a complex custody dispute, our family law team is here to help.