Federal legislation makes it clear that when deciding parenting issues, such as decision-making responsibilities, the outcome must be individually tailored to the specific family and be made through a focused consideration of the child’s best interests. Sometimes, shared decision-making may be appropriate, but every family is different. However, under the wrong circumstances, the result can be indecision and conflict, furthering hostilities between parties. Shared decision-making will often require compromise between the parents, which was and recent cases demonstrate why this is important, and the cost to children when parties cannot work together to make decisions.
In making a parenting or contact order, courts must consider any parenting plan that the parties have presented. Section 16.6 (1) of the Divorce Act instructs courts to include a parenting plan in any order unless it is the opinion of the court that it is not in the best interests of the child, in which case the court may make any modifications to the plan that it considers necessary. A parenting plan can be any document “that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.” The statute does not set out specific formal requirements around the formation of a plan, except that the parties must voluntarily agree to the terms.
In McBennett v. Danis, it was acknowledged that these plans could include “aspirational” terms that went beyond allocating rights and responsibilities but also set goals and expectations regarding the parties’ behaviour. While these might not traditionally be included in an order, Justice Chappel indicated that judges could reformulate their understanding of what parenting orders look like. This respected parental choice and was consistent with the Ontario Court of Appeal decision of Knapp v. Knapp, where the Court explained that it is preferable that parenting plans be developed and agreed to by the parents.
As parenting plans are significant documents in settling parenting issues, courts have encouraged individuals involved in family law cases to consult various resources that aid in the development of child-focused plans. In Sadiq v. Musa, Justice Kristjanson recommended the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-O) Parenting Plan Guide, which provides guidance on formulating parenting arrangements based on a child’s age to ensure their best interests can be met.
The Divorce Act defines “decision-making responsibility” as the “responsibility for making significant decisions about a child’s well-being, including in respect of (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities.” Section 16.3 of the Divorce Act allows courts to allocate decision-making responsibility over a child. The provision gives courts wide discretion to create a decision-making responsibility framework tailored to the unique family circumstances and promoting the child’s best interests.
Previous decisions, such as Chomos v. Hamilton, have also confirmed that judges may consider all possible parenting frameworks, not just those proposed by the parents. In J.B.H. v. T.L.G., the Court explained that the goal in settling the issue of decision-making responsibility is to ensure the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” Here, the Court indicated that all courts need to take note of the relationship between the parents and their ability to co-parent. Consequently, their past behaviour could be a guide and indicate their future behaviour.
In McBennett v. Danis, Justice Chappel explained that the options permitted under section 16.3 of the Divorce Act reflected that family situations often require custom decision-making regimes to ensure the child’s best interests. Shared decision-making allows for both parents to be fully involved in their child’s lives. However, it does require cooperation between parents. In MacDonald v. Cannell, Justice Robertson explained that “joint decision-making authority is more than just a “feel-good” label. It is well-settled law that it should not be ordered in the hope that communication will improve or because it will make parents feel better. It works where parents share the same beliefs, with a good history of co-operation.”
In Rogers v. Porga, the parents had a shared parenting arrangement but disagreed about medical and educational issues for their son. The mother brought a motion to allow the child to attend Templemead School because the program was suited to the child’s developmental needs. The father opposed having the son change schools and believed better alternative programs were available. Their final consent order stated that the parties “shall make decisions affecting the health, education and general welfare of the children.” Based on these circumstances, the judge wondered why the parents consented to a shared parenting order if they could not make the arrangement work.
The judge did acknowledge that some of the father’s concerns about the Templemead program were understandable. However, the best available response to the child’s speech problem was the Templemead proposal, and the father’s strong opposition to it was not logical or child-focused. He was unable to provide evidence that there was a better option or that the speech program at Templemead would interfere with any professional treatment of the child’s hearing issues. Overall, the judge found that the failure of shared parenting by the parents was almost detrimental to the child. The father’s lack of cooperation resulted in the child nearly losing his place in the program as an acceptance deadline was missed.
In looking at shared parenting arrangements, Justice Pazaratz explained that:
Ultimately, what is important is that “the decision-making designation benefits the child by creating a reliable mechanism for appropriate decisions to be made in an efficient, productive, civil and timely manner.” Justice Pazaratz acknowledged that legislative changes had adopted more conciliatory terminology to limit the use of polarizing terms within family disputes. New terms like “shared parenting” were intended to promote respect and parental involvement to benefit children.
However, Justice Pazaratz also emphasized that shared parenting is about responsibilities and not parental rights. It provides an opportunity for both parents to have a meaningful role in their child’s lives by making decisions in a cooperative child-focused manner. Ultimately, it should provide opportunities for parents to solve problems rather than lead to constant arguments. In Izyuk v. Bilousov, the court warned that in certain family circumstances, joint decision-making could “perpetuate hostilities, indecision, and power struggles.” What children really needed was decisions to be made “quickly, properly and uneventfully.”
In this instance, the mother’s motion was granted, and the father was required to ensure the child attended the school program during his scheduled parenting time.
Courts encourage parents to work together to settle issues in dispute, create parenting plans, and make decisions in their children’s best interests. However, shared decision-making responsibility will not be appropriate in every case. For some families, it may only perpetuate conflict that is harmful to children. Judges have also remarked that parents can disagree with each other, but they need to be able to make important decisions in a child-focused manner.
If you are going through a separation or divorce and are experiencing parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. As trusted and compassionate divorce lawyers, we are well-versed in provincial and federal family law rules and legislation, which means we can provide thorough, honest legal advice quickly and efficiently. Whether you are navigating an initial parenting arrangement or are seeking to modify an existing agreement, contact us online or call our office at 416-481-5604 to learn how we can assist you.