Decision-making responsibility (formerly known as custody) and access may become controversial issues following a separation or divorce. Parents may agree to arrangements with the help of a family lawyer or mediator, however, when the parents are unable to agree, a court may be tasked with determining issues relating to custody and access.

This article considers some of the options available to the courts when deciding on allocating decision-making responsibility, including what has been referred to as a hybrid arrangement. 

What is decision-making responsibility?

Decision-making responsibility, formerly referred to as custody, refers to the parental responsibility for making significant decisions about a child’s well-being. This includes making decisions in respect of the child’s health, education, culture, language, religion and spirituality, and significant extracurricular activities. 

In a sole decision-making responsibility arrangement, one parent has the legal authority to make major decisions about a child’s care and well-being. In contrast, in a joint decision-making responsibility arrangement, both parents have equal legal decision-making capacity regarding major decisions about the child.

What options are available to the court? 

In determining decision-making responsibility, the overriding test, as set out in the Divorce Act, is determining what is in the best interests of the child. The courts are required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. The legislation sets out several factors for the courts to consider when carrying out its analysis. The courts have many options available to them when allocating decision-making responsibility. They can allocate decision-making responsibility as a whole, or any aspect of it, to either spouse, to both spouses, to specified other people, or to any combination of these people.

Various potential circumstances for decision-making responsibility allocation can include:

  • Sole decision-making responsibility in all areas to one spouse,
  • Joint decision-making responsibility in all areas to both spouses,
  • Joint decision-making responsibility to both spouses in one or more areas of responsibility but sole decision-making authority in the other areas to one or both spouse(s),
  • Sole decision-making responsibility in separate specified areas to each spouse, with no provision for joint decision-making in any areas, or
  • Spouses are required to make all reasonable efforts to make some or all significant decisions jointly, however one party will be designated as having the final say in each area of decision-making in the event of disagreement.

A hybrid approach is also possible. If the parties are able to cooperate in some areas but have a pattern of conflict in other areas, a court could order joint decision-making in the areas that are not problematic and allocate the remaining areas to each party for sole decision-making.

Parents separated after father’s infidelities 

In McBennett v Danis, the parties were married in 2010 and had one child who was born in 2014. The parties had a long-distance relationship after meeting online before the mother, a teacher, moved back to Niagara to begin living with the father at his home in St. Catherines. The parties began living separate and apart in 2017.

The relationship ultimately broke down after the father “engaged in a persistent pattern of lying, manipulation and emotionally damaging tactics” with the mother in relation to his affairs. The father also had problems regulating his anger during the relationship and exposed the mother and child to several volatile outbursts.  

There were many issues in the litigation, but with respect to parenting, the mother sought sole decision-making responsibility and primary residence of the child. The father sought equal parenting time and a detailed order dividing the significant areas of decision-making responsibilities.

Court rejected sole decision-making responsibility

Justice Chappel found that the father had complied with recommendations from professionals to address his emotional functioning and behavioural issues. He had also attended long-term counselling and sought support around parenting issues.

Her Honour determined that it was in the child’s best interests to have equal parenting time with both of her parents. 

On the issue of decision-making responsibility, after considering the legislative factors and family history, her Honour rejected the mother’s request for sole decision-making responsibility. Justice Chappel found that sole decision-making responsibility would result in the mother marginalizing the father’s role in the child’s life. Instead, her Honour found that both parents had a lot to offer their child in terms of their perspectives, knowledge, life experiences, activities that they enjoy with her and parenting approaches.

Court ordered hybrid approach to decision-making responsibility

Justice Chappel decided on a complex order splitting decision-making responsibility. With respect to medical and health matters, her Honour observed that the parties have generally been able to navigate those issues together cooperatively and collaboratively. As a result, the parties were ordered to jointly engage in all reasonable efforts to decide significant issues respecting the child’s medical and health-related needs.

However, in the event of an impasse, her Honour allocated the final say to the father on dental and vision care, and psychiatric, psychological and counselling needs. This was because he had exercised sound judgment on dental issues previously, and the judge had some concerns that the mother had undue anxiety about issues relating to the child. The mother was given the right to make the final decision on all other medical and health-related issues. 

With respect to educational matters, the parties’ opinions often conflicted. As a result, Justice Chappel gave the mother sole decision-making responsibility, noting that education was an area of strength for her. The father was given the right to make decisions about extracurricular activities falling during the parenting time of both parties. 

Finally, the order set out that neither party was allowed to take steps to formally associate the child with any particular religious or spiritual faith or organization without the consent of the other.

Contact NULaw Family Lawyers in Toronto for Advice on How to Protect Your Custody and Decision-Making Rights

Family dynamics can be complicated, particularly after a relationship breakdown when children are involved. If you are experiencing access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw has been helping clients in Toronto since 1953. Our family lawyers have extensive knowledge of family law issues and provide honest and practical legal advice tailored to each client’s unique issues relating to custody and access. Contact us online or at 416-481-5604 to book a confidential consultation.

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