Our Specialties > Custody – Decision Making

CUSTODY -
Decision Making

custody - Decision Making

Child custody is now known as “decision making responsibility” under the new version of the Divorce Act changes which were made in March 2021.  The considerations are the same – will you be the one making decisions about the important aspects concerning your child?  Will you decide on his or her residence, religion, education and health.  Do you want to or are you able to make joint decisions with your ex spouse?  And what’s really best for your child?  These are still the critical questions that must be negotiated between you and the other parent or argued before the court.  Let’s talk about possibilities, probabilities and the likely outcome in your case.  

As parents, we have the responsibility of caring for our children’s needs; both physical and emotional. In Ontario, each parent automatically has the right to make decisions concerning a child’s living arrangements, education, recreation, religion and medical treatment. The ideal situation is where the child’s parents have a civil working relationship, discuss and can agree on how the child’s needs may be met.

However, life is sometimes not ideal and parents may not always see eye to eye on these matters. This is where it may be necessary for the Law to create a dynamic that is in the best interest of the child and determine arrangements for parenting.  Various residential or custodial arrangements  can be made depending on your situation. 

FAQ

With joint decision-making, both parents have the right to make important decisions about their children’s health, education, religion and upbringing, and they are normally expected to do so together.   

No. Interestingly, courts are beginning to customise joint decision making where possible by making each parent responsible for the type of interaction the parent is best suited to do with or for the child. For example, both parents may make most decisions together or decide on a tie breaker when they can’t agree, but if one parent is a nutritionist, he may have the sole or the lead decision-making authority about the children’s health or nutritional needs, whereas the athletic or social parent may be primarily or solely in charge of the children’s athletic and extracurricular activities. The ideal is to provide the children with the best that each parent can offer. 

Yes, especially where the parents are cooperative.  Even so, changes are occurring in this area.  It appears that courts are increasingly recognising that sometimes the parent the child resides with fakes miscommunication and projects a lack of the other parent’s capacity to cooperate to try to prove that the joint decision making between them is not appropriate. 

In the case, Proulx v. Proulx, 2022 ONCA 428, the Court of Appeal upheld the trial court’s decision where the trial court had examined the parents’ relationship and found that joint decision-making was appropriate. This was despite the mother’s evidence that the father was violent towards her, despite the criminal charges against him of uttering threats, mischief to property and assault against her, none of which were proven in criminal court, and for which the husband was fully acquitted.  

The court had found that despite the allegations, the parents had been able to communicate about the child, even though it was largely through the Husband’s new wife.  That court said that it was not necessary to have perfection in communications between the parents so long as the communication that occurred served the child’s best interests.  In this case, it did. The court noted that throughout the duration of the family law proceedings, the parents were able to obey court orders concerning their son. To that extent, both parties had acted in the child’s best interests. 

This is an interesting judgement:  it seems to be made with the knowledge that often when court appearances end, many parents drop their defences and return to life as usual, without the battlefield.  

“Decision-making responsibility” refers to a parent’s authority to make decisions about the child such as educational decisions, non-emergency medical decisions, religious decisions and decisions about extracurricular activities. The non-decision-making parent does not have the right to make or be involved in making choices affecting the child’s welfare and development, even if they have parenting time with the child.  If an emergency arises or when the decision-making parent is unavailable, a non-decision-making parent may exercise some restricted decision-making authority.  

“Parenting time” has replaced the word “access”; think visiting with the child as distinct from making decisions concerning the child.  “Parenting time” refers to a child’s right to visit with or be visited by their parents.  Recall that the test is “in the best interests of the child.” Parents often confuse this concept thinking and saying, to the annoyance of many judges, that it is their right to see their child.  This is inaccurate:  the right belongs to the child to see, know and bond with their non-residential parent so as to develop a balanced relationship with both parents.     

Parenting time also includes the parent’s right to inquire about and receive information about the child’s health, education and welfare from the parent with decision making responsibility or from the children’s third-party caregivers and supporters.

Making a judgement about a child’s best interests requires considering all of the child’s needs and surroundings. The Divorce Act and the Children’s Law Reform Act provides a list of factors that a court must consider when deciding a child’s best interests. They include:

  • the child’s age and stage of development
  • the child’s need for stability
  • the nature and strength of the child’s relationship with each spouse
  • each of the child’s siblings and grandparents, and any other person who plays an important role in the child’s  life; each spouse’s willingness to support the child’s relationship with the other spouse
  • the child’s history of care
  • the child’s opinions and preferences

The Divorce Act and the Children’s Law Reform Act state that in distributing parenting time, the court shall consider the “maximum contact principle”, that is, unless there are good reasons to reduce the time the parent and child should spend together, each parent should spend as much time with the child as possible, consistent with the “best interests of the child.”  

In addition, in making parenting orders, the court will only consider the parent’s past conduct when making a parenting or contact order if the court is satisfied that the parent’s past conduct is relevant to his or her ability to act as a parent, or, if the conduct relates to violence or abuse against his or her spouse, that the conduct is relevant to a parent of the child that the court application is made about or a member, including another child of the parent’s  household.

Courts have broad authority to create parenting orders for definite or indefinite lengths of time, with whatever terms, conditions, or restrictions that the court deems appropriate. What occurs in each situation is highly dependent on the facts.

Courts can issue parenting orders on a temporary basis, as well as joint shared decision-making orders (which are popular), sole decision-making orders, supervision orders, orders to amend or terminate pre-existing parenting orders, and other related measures like mobility restrictions (for instance, to prevent a parent from moving a child to another city or province). Third-party decision-making orders (which are uncommon) and third-party contact orders (which are more common) may also be granted by courts (for instance, orders for grandparents to be able to spend time with their grandchildren).

Because the courts’ primary concern is the child’s best interests and not parental rights, continuous parental conflict or an inability to constructively share decision-making authority between the parents may have an impact on a court’s judgement. However, one parent causing a squabble and claiming single decision-making authority because they are unable to work with the other parent will not result in a sole decision-making authority order. The courts will consider whether there is a sufficient level of collaboration and communication between the parties to permit effective parenting and satisfy the requirements of the child when determining whether joint decision-making is suitable.

Even in circumstances where there are excessive disputes between the parents, there are solutions that allow for shared decision-making. A parenting coordinator’s assistance in resolving disagreements and/or a parallel parenting arrangement, commonly known as divided decision-making, could be used. Parallel parenting orders may include provisions such as each parent taking responsibility for the child while the child is with that parent; a parent having no say over the actions of the other parent while the child is with the other parent; minimal contact between the parents; and the sharing of information about the child in writing. Another alternative is to designate certain areas of decision-making authority for each parent, for example, one parent makes decisions about education, the other makes decisions about health. The courts will only consider whether a parallel parenting arrangement or divided decision-making is in the best interests of the child when deciding whether such an order is appropriate.

When a joint decision-making order of any sort is not appropriate, a parenting order may be used to guarantee that the parent and child maintain a relationship through spending time together.

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