“In assessing any decision-making order the court must consider whether the terms of a particular order are:
a) more or less likely to de-escalate or inflame the parents’ conflict;
b) more or less likely to expose the child to parental conflict; and,
c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent.
A parallel parenting order in which each parent is allocated his or her exclusive sphere of decision-making still requires some ability of the parents to communicate in the face of inevitable gaps in even the most detailed order: Montforts v. Clarke, 2019 ONCA 723.
In V.K. v. T.S. ONSC 4305 (CanLII), Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:
a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.
b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.
c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.
d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.
e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.
f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.
The court has several options: McBennett v. Danis, 2021 ONSC 3610:
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- It may grant sole decision-making responsibility in all areas to one spouse.
- It may grant joint decision-making responsibility in all areas to both spouses.
- It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
- Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
- Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement.
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There is also a sixth option of parallel parenting, assigning responsibility for decisions in certain areas to one parent, with the opportunity for input within a certain time frame.”