Child Custody
Child Custody

Over the years, a great deal has been learned about the effects of divorce and conflict (including a long court process) on children and families. The Federal and Provincial governments have moved towards strongly encouraging alternative dispute resolution to help parents resolve their parenting issues such as mediation and collaborative law rather than jumping straight to the courts for resolution. In most cases, litigation should be a last resort after other more cooperative forms of dispute resolution have been considered.

In order to direct ever greater focus on the best interests of the child, in 2019 the Divorce Act was amended to use terms that emphasize relationships with children, instead of seeing children as property with rights of ownership. “Parenting time”, for instance, was formerly referred to as “access” and decision-making responsibility now replaces the former term “custody”. The term “custody order” is now referred to as a “parenting order” to reduce the potential for conflict between parents who mistakenly perceive themselves as fighting over their rights (ie to custody of a child) as opposed to the new focus on their decision-making responsibilities to their children. 

What Is Decision-Making Responsibility?

Decision-making responsibility now replaces the concept of child custody, and it refers to the parental responsibility for making the major decisions regarding the children’s well-being. These decisions include decisions respecting the child’s healthcare, education, religion, and enrollment in extracurricular activities. 

Types Of Decision Making Responsibility

Child Custody in Ontario

In Ontario, there are two types of decision-making responsibilities; Joint decision-making and sole decision-making. 

As the names suggest, in a joint decision-making situation, both parents are obliged make major decisions jointly, namely a decision they both agree on, which naturally requires them to cooperate and presumes a basic level of good faith between them and a willingness and ability to cooperate with the other parent for their benefit of their children.  In this type of arrangement, it is still ideal that there be an alternative dispute resolution process in place to help parents make a decision where they can’t agree. Such dispute resolution processes can include mediation or the use of a parenting coordinator and further the parents can also empower such individuals to make a binding decision where they still cannot agree.

In a sole decision-making arrangement, one parent is empowered to make all major decisions. This may be because joint decision-making is unworkable because one parent is uncooperative or where a history of violence or abuse makes joint decision-making impossible.

In some situations where parents cannot agree but both are involved and caring parents capable of making decisions in the best interests of their children, parallel decision-making responsibilities can be put in place by agreement or court order.  In this type of scenario, one parent is solely responsible for major decisions in specific areas (ie. health and religion ) while the other parent is solely responsible for major decisions in other areas (education and extracurricular activities ). Where sole decision-making responsibilities are granted for a specific area of a child’s life, then one parent makes all major decisions in that area. 

Hummingbird Lawyers LLP Can Help

When it comes to the best interests of your children,as the parent you will know best what your child needs.  If you’re in a family law dispute, it is always advisable to consult with a family lawyer to understand your rights and obligations so that you can make the best decision for your family and use the process that serves you and your children best. At Hummingbird Lawyers LLP, we understand that divorce is a very difficult and overwhelming time. We’re here to help you every step of the way. Contact us to see how we can help.

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