“The recent changes to the legislative terminologies, contained in the Children’s Law Reform Act, reflect a more child focused approach to decisions relating to parenting orders. Regarding decision-making responsibility, the focus is on the role of the parent visa vie the child; the responsibility to make effective decisions which impact the child, rather than on the rights of the parents in relation to the child. Regarding parenting time, the focus is on the role of the parent while having care of the child; the responsibly to provide effective parenting, rather than on a parent’s “right” to time with the child.
Along with the changes to terminology is a recognition that decision-making responsibility is not an “all or nothing” proposition, and that the responsibilities can be divided between parents, as is consistent with the interests of the children.
The enumerated factors for consideration, confirm that the determination is specific to the facts of each case. The factors provide a framework to consider the unique circumstances of each family, and suggest considerations found to be particularly relevant to determining how the child’s best interests can most effectively be determined. The factors provide a helpful framework and focus, for considering the facts of each case.
Jurisprudence has also developed and evolved, around the determination of decision-making responsibility and parenting time, to guide in the application of the legislative framework.
Of particular relevance in this case, is the jurisprudence relating to the determination of sole decision-making responsibility versus shared or divided decision-making. These parents initially made the determination, following months of negotiations, that it was in the best interests of their children to share decision-making responsibility on major decisions relating to their children. This was reflected in the Separation Agreement they executed in August 2016, wherein they agreed to share “joint custody” of their children, and to make major decisions concerning the children’s education, non-emergency health-care, and religion, together.
Each parent is now seeking sole decision-making in relation to major decisions, in consultation with the other parent.
There is a history of judicial consideration of the issue of “joint” or shared decision-making versus sole decision-making, and the circumstances in which each is more appropriate. In the end, however, the determination is fact-specific to the particular circumstances of the family before the Court. The question is always, what decision-making regime will best serve the interests of these children; their need to have effective, timely decisions made for them, consistent with their unique needs and circumstances. Looked at from the parents’ perspective, which parent is best able to assess and understand the needs of the children and to make decisions that meet those needs effectively, and with the meaningful involvement of the other parent.
Just as each family differs, and circumstances require an individualized regime to best meet the unique needs, so too does the legislation provide for individual forms of decision-making orders, providing for decision-making to be granted to more than one parent, or the incidents of decision-making to be divided between the parents.”