Decision-Making Responsibility

Angela Princewill

March 2, 2023
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Decision-making responsibility (formerly called “custody”) is an important aspect of family law in Ontario. When parents separate or divorce, they may be required to make decisions together about the care and upbringing of their children. Decision-making responsibility is the right to make major decisions about your children. Some of these major decisions include:

1. Education;
2. Medical/Health;
3. Religion; and
4. Extra-curricular activities.

Decision-making only relates to making major decisions about your children. It does not include who your child[ren] lives with or how much time a parent spends with the child[ren].

Types of Decision-Making Responsibility

Sole decision-making responsibility refers to one parent retaining the right to make major decisions regarding the upbringing and well-being of their child[ren]. Sometimes, the sole decision-making parent may be required to consult with the non-decision-making parent. In the event of a disagreement, the parent retaining sole decision-making will have the final say on the issue.

Joint decision-making responsibility refers to where both parents make major decisions regarding the upbringing and well-being of their child[ren]. If parties are seeking joint decision-making responsibility, it is vital that they demonstrate an ability to communicate and cooperate with each other to serve the best interest of their child[ren].

It is important for parents who share decision-making responsibility to communicate effectively and work together to make decisions in a timely and efficient manner. This can help reduce conflict and ensure the child’s needs are met. In some cases, it may be necessary to seek the assistance of a family law lawyer to help navigate the complex issues that can arise in shared decision-making situations.

Parallel decision-making responsibility occurs when one parent is responsible for some major decisions, for example, health and religion, and the other parent is responsible for other decisions, for example, education and extra-curricular activities.

A party needs to carefully assess which method is appropriate in their circumstances in light of the child[ren]’s best interest. For example, as stated above, if the parties are able to communicate and cooperate well with each other, joint decision-making responsibility may be a feasible option. On the other hand, if there is a power imbalance or poor communication, then perhaps sole or Parallel decision-making responsibility may be a better option.

If the parents are unable to agree on a decision, they may need to seek the assistance of a mediator or, in extreme cases, attend court to resolve the issue. In court, the judge will consider the best interests of the child[ren] when determining the issue of decision-making responsibility.

Best Interest of the Child 

In Ontario, the best interest of the child[ren] is the guiding principle in family law cases that involve child[ren]. The law recognizes that the well-being of the child[ren] is of utmost importance and that all decisions must be made with the child[ren]’s best interests in mind.

When making decisions about children in family law cases, the court will consider several factors to determine what is in the child’s best interest. Some of the factors that the court may consider include:

1. The child’s needs, given their age and stage of development;
2. The nature and strength of the child’s relationship with each parent, sibling, grandparents, and any other person who plays an important role in the child’s life;
3. Parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
4. History of care of the child;
5. The child’s views and preferences;
6. The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. Any plans for the child’s care;
8. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
10. Any family violence and its impact on, among other things,

  • The ability and willingness of any person who engaged in family violence to care for and meet the needs of the child; and
  • the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

11. any civil or criminal proceeding, order, condition, or measure relevant to the child’s safety, security, and well-being.

In addition to these factors, the court may consider any other relevant factors that could affect the child’s well-being.

It’s important to note that the child’s best interest is not just a consideration in court cases. Parents who are making decisions about their child[ren] outside of court should also consider the best interest of the child[ren]. This can include decisions about where the child[ren] will live, how the child[ren] will be raised, and how the child[ren] will be educated.

Ultimately, the best interest of the child[ren] is about ensuring that the child[ren]’s needs are met and that the child[ren] can thrive. By putting the child[ren]’s needs first, parents can work together to create a safe and nurturing environment for their child[ren], even in the midst of a family law dispute.