“Chappel J. in McBennett v. Danis, 2021 ONSC 3610 (CanLII), undertook a review of the caselaw relating to decision-making determination and set out a helpful list of guiding factors that have been identified over time, particularly in relation to joint decision-making. They include:
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- In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties;
- The ultimate goal in crafting an appropriate decision-making regime is to promote 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.” (Lafrenière J. in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.));
- There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;
- Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;
- In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement;
- The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;
- The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children. The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord;
- In assessing the level of conflict and cooperation the question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children;
- In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict;
- Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party;
- Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions;
- Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order. This principle applies even where both parties are attentive and loving parents;
- The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.
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Chappel J. also discussed the body of caselaw relating to “divided decision-making” regimes and observed:
The caselaw has also established some valuable principles and guidelines for assisting the courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party. These would include orders requiring the parties to attempt to make decisions jointly, but which grant each party final say in specified areas of decision-making in the event of disagreement. These types of decision-making frameworks evolved as a means of meeting the needs of children in circumstances where both parties have been involved and competent parents, and the child would benefit from both having a say on important matters, but the conflict between them is such that a traditional joint decision-making order or an order for sole decision-making in favour of one parent would not be in the child’s best interests. Courts have recognized there are many merits to these types of regimes in appropriate cases. They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord (Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.), at para. 30; Jackson v. Jackson, at para. 69).”