Understanding Decision-Making Responsibilities and Parenting Arrangements in Canadian Law

Going through a divorce or separation as a parent can be a difficult and frightening time. There are many decisions to make, including how to divide your property, spousal support, and child support. One of the biggest decisions you will have to make is how you will share the responsibility and ability to make decisions for your child, and how you will share time with your child with your former spouse or partner. 

“Custody and Access” now “Decision-Making Responsibilities and Parenting Time”

When thinking about parenting arrangements in a divorce or separation, the term you might be most familiar with is “custody”. “Custody” and “access” are the terms that have been historically used to describe how parents share the responsibility for making decisions for their children, and how they share time with their children. Amendments to the Divorce Act, effective as of March 2021, removed these terms from the Divorce Act in an effort to remove the possessive qualities of the words, and refocus the legislation and divorce/separation procedures on the best interests of the children.

“Custody” is now referred to as “decision-making responsibility”. Some provincial legislation uses the term “guardianship.” This means the responsibility to make big life decisions about your children’s well-being in areas like education, healthcare, religion, language, cultural heritage, and significant extra-curricular activities. Common decisions include things like:

• What school will your child attend?
• Will your child skip a grade, or enter a special needs education program?
• Who can consent to a medical treatment?
• What religious tradition should your child be raised in?

“Access” is now called “parenting time”. This is the time that a child spends in the care of a parent. This includes time that your child is physically with you, as well as time that you are still responsible for them, even if they are not physically with you, like when they are at school.  When you have parenting time, unless otherwise specified in a court order, you have the responsibility to make day-to-day decisions for the child, such as what they wear, what they eat, and when they go to bed. 

Decision-making responsibility and parenting time are separate legal issues. It is possible for a parent to not be granted decision-making responsibilities even if they have scheduled parenting time with their children. 

Decision-making (custody) and parenting time (access), are also separate legal issues from child support. In specific circumstances, it is possible to not have decision-making responsibilities for a child, but still be required to pay child support. Likewise, it is also possible to not be awarded parenting time with a child, and still be required to pay child support.

Decision-Making Arrangements

There are a variety of possible decision-making or custody arrangements. These have historically been broken down into “sole custody” or “joint custody” or a blend of the two.

Most often, parents share decision-making responsibilities equally. This has historically been called “joint custody”. This means that both parents will be included and will have a say in making those big-life decisions for their children. 

Sometimes, only one party will have the responsibility of making these decisions for their child. This has historically been called “sole custody”. Unless otherwise ordered, the other parent will still have the right to be provided with information about their child, but will not be able to make decisions, such as enrolling them in a specific school, or consenting to a medical treatment. Having sole decision-making responsibilities does not mean that the other parent will not be able to spend time with the children. It also does not mean that the party with sole decision-making responsibility has the final say over what time the other parent spend with the child. Normally, both parent’s parenting time will be specified in a court order or an agreement.

Sometimes the decision-making arrangement is a blend of joint and sole, customized to your specific circumstances. Examples of blended arrangements include:

• Each party being responsible for certain areas of decision making. For example, one party may be responsible for making decisions related to health-care and the other may be responsible for decisions related to education.
• The parties sharing decision-making responsibilities for all areas except for one. For example, parents may share all decisions except for health-care decisions, or a specific element of health care decisions such as vaccinations.
• The parties may share decision-making responsibilities, but if they cannot agree, one party may have final say in all, or specific areas. In this case, both parties will have the right to have input but one party will make the final decision.

Parenting Arrangements

There are no automatic parenting schedules outlined in legislation. The Divorce Act previously stated that it was important for a child to spend as much time as possible with each parent. This was removed in the amendments made, effective March 2021, to ensure that each case was considered individually. Each parenting arrangement should be customized to be in the best interests of the child. Your parenting agreement or order for parenting time might be very specific. For example, it might list specific times and methods for transitions and set out detailed schedules for holidays. Alternatively, sometimes parenting arrangements are very broad and flexible. While there is no standard parenting arrangement, common schedules can be broken down into some general categories.

Primary Care Arrangements

“Primary care or primary residency” are terms sometimes used to describe when one party has the majority of the parenting time of a child. For family law purposes, “majority” means more than 60% of the time. An example of this schedule would be when one parent has parenting time on alternating weekends, and the other parent has parenting time the rest of the time.

Shared Parenting Arrangements

Shared parenting means parenting arrangements in which each parent has 40-60% of the parenting time. Common examples might include alternating week schedules, or where the parties equally share weekday parenting time and have parenting time on alternating weekends. 

Split Parenting Arrangements

Split parenting is  a parenting schedule in a multi-child family in which each parent has the majority of the parenting time of at least one child. This is the most unusual form of parenting arrangement since separating siblings is not usually preferred. Despite sometimes being called “split custody” it only refers to the parenting schedule, and does not necessarily impact decision-making responsibilities.

Who decides?

Parents are the individuals best positioned to make decisions for their children. As long as a child is not endangered, the court is unlikely to interfere in the parents’ agreement with respect to parenting time and how decision-making responsibilities are shared.

If parents cannot agree, there are several methods that can be used to reach a decision. Alternative dispute resolution methods, such as mediation, settlement meetings with lawyers, or specific resolution programs developed by each province are encouraged, and may be mandatory before a court application is made. Another option is arbitration, where a professional in the industry, often an experienced lawyer, is given authority by the parties to make decisions after hearing evidence. Parenting coordinators are arbitrators empowered to make day-to-day parenting decisions that aren’t usually dealt with in a court order, but cannot make major decisions just as changing parenting time or decision-making responsibility. Collaborative lawyers have specific training in resolving matters outside of court, and make an agreement not to bring court applications. These alternative dispute resolution methods may not be suitable in every situation, especially in cases involving family violence.

If alternative dispute resolution methods fail, or are inappropriate, a decision on who has decision-making responsibilities and the parenting schedule will be made by a judge through a court application. 

What is considered?

The Divorce Act states that only the best interests of the child(ren) will be taken into consideration when an order to determine decision-making responsibilities or parenting time is made. The primary consideration is the child’s physical, emotional, and psychological safety, security, and well-being. 

A court will consider all of the circumstances of the child, specifically including the following:

• The child’s needs, based on their age and stage of development;
• The relationship the child has with each of their parents, and with siblings, grandparents, and any other important person in the child’s life;
• Each parent’s willingness to foster a relationship between the child and the other parent;
• The history of care of the child;
• The child’s views, while considering the child’s age and maturity;The child’s cultural, linguistic, religious, and spiritual upbringing and heritage;
• Any plans for the child’s care;
• The ability and willingness of each parenting to care for the child;
• The ability and willingness of each parent to communicate with others who have decision-making responsibilities for the child;
• Any family violence; and
• Any other court proceeding, order, or condition that is relevant to the safety and well-being of the child.

Because it is important to consider the best interests of the child based on that child’s specific circumstances, there are no presumptive arrangements or schedules included in the legislation.

When can a child decide?

A child doesn’t have absolute say on which parent he/she lives with or spends time with until they become an adult. At a certain point, however, a child’s views on the subject might be considered when making parenting arrangements. There is no defined age when this occurs, because it is based on that specific child’s maturity. A child around age 12 might start to have input, and around 16, the child’s views might become more significant, but these are just general trends.

There are several ways that a child’s views might be taken into consideration. If the children are older, and the parents have a reasonably amicable relationship, the children’s views may be considered informally by the parents when they decide on a parenting schedule. In more adversarial or formal situations, children’s counsel may be assigned or requested. The nature of this involvement will be dictated by court order and may range from simply recording the children’s responses to questions asked, preparing submissions on what would be in the best interests of the child, or acting as a direct advocate. Another method to incorporate a child’s view is through a psychologist. In some cases, the psychologist’s report will simply identify the child’s views. In other cases, a psychologist may perform an assessment of each party’s parenting abilities in addition to speaking with the children.

Regardless of whether or how a child is directly involved in this process, it is important to prioritize keeping the children out of the conflict between parents as much as possible. Child custody cases that actively involve the children in court procedures are exceptions rather than the norm.

What Law(s) Applies?

If you are married, and are seeking a divorce, the Divorce Act is the applicable legislation. This is federal legislation that applies throughout the country. 

If you are not married, or are married but not seeking a divorce, your provincial family law legislation will apply. This legislation will be similar to the Divorce Act and other province’s legislation, but there may be differences specific to your province. Common titles for the provincial legislation include the Family Law Act, the Child Reform Act, or the Children’s Law Act. 

Working with Fairway Divorce Solutions

Navigating child custody issues can be a complex and emotionally challenging process. Understanding the legal frameworks, such as the Divorce Act, the Child Reform Act, and the Family Law Act, is crucial to reaching fair and sustainable parenting arrangements. 

Fairway’s divorce resolution experts can provide valuable guidance in establishing custody and parenting time agreements that prioritize the well-being of the children involved. By making informed decisions and prioritizing the best interests of the child, parents can work towards creating a stable and nurturing environment post-divorce. Remember, effective communication, cooperation, and a focus on the child's welfare are key to successful co-parenting despite the challenges that may arise.