Tips for Parenting Decision-Making in a Divorce or Separation

When relationships break down, the first priority of most parents is the wellbeing of their children. There are times when one parent fears that the other will be unable to make constructive decisions about the rearing of their children. Often, one parent worries about whether he/she will be able to arrive at decisions with a former partner without turmoil or conflict.

So, when there is conflict around parenting decisions, who gets the final say?

In Ontario, our Children’s Law Reform Act R.S.O. 1990, c. C.12, addresses a parent’s rights in relation to decision making. It starts from the premise that, save in specified circumstances, a child’s parents are equally entitled to decision-making responsibility with respect to their child (Section 20(1) – https://www.ontario.ca/laws/statute/90c12#BK34 )

However, if the parents of a child live separate and apart and:

• the child lives with one of them,
• with the consent, implied consent or acquiescence of the other, 

the Act states that the right of the other to exercise decision-making is suspended until a Separation Agreement or Order provides otherwise. (Section 20(4) – https://www.ontario.ca/laws/statute/90c12#BK34 )

The Bottom line:

• Before you leave your child in the care of your partner, ensure that there is an Order or agreement in place regarding decision-making and parenting time, or your rights could be compromised.
• In any event, if you are planning to separate, you must craft an agreement with your spouse or obtain a Court Order around decision making authority for your child.

Sole Decision-Making or Joint Decision Making? 

Will one parent have full decision-making authority or will you share this role? Here are some tips to assist you in arriving at a plan around sole or joint decision making.

Upon a separation, a Court Order or agreement will determine the right of parents to make major decisions affecting their child. Major decisions are distinguished from day-to-day decisions.

Day-to-Day Decision Making – Day-to-day decisions can include things such as: what meal the child eats, when is his/her bedtime, can he/she play videogames, does he/she need a haircut. Each parent will have exclusive authority to make day-to-day decisions as to the care and upbringing of their child while the child is in his or her care, unless a Court orders otherwise.

Consistency – It is generally beneficial for a child to have a reasonable level of consistency as to day-to-day routines in each parent’s home. Thus, parents should be prepared to be reasonable and flexible in generating consistent day-to-day plans.

Major Decision Making – Major decisions include things such as, what school a child will attend, will he/she attend a French Immersion program, what significant medical treatments he/she will receive, what religion he/she will practice, and the like. These are the kind of decisions governed by Court Orders or agreements.

Proportionality – There are typically no more than a handful of major decisions made regarding a child in a given year. This puts into perspective the number of opportunities for possible discord. Thus, if you are having doubts about shared decision-making, you will want to consider whether you can manage to work with your partner on this relatively limited basis.

Conflict – A high level of conflict between parents is a significant impediment to obtaining an order for shared decision-making.

Tailored Terms? – Where one parent worries about the other’s willingness to cooperate around certain child-based concerns, the parties can build terms into their agreement or Order that set joint expectations around these concerns. For example, they can agree that: each party will take the child to counselling during his/her respective time with the child; the child will participate in no more than 3 formal extra-curricular activities a year or that the child will attend church weekly. These types of clauses can allay specific concerns about decision making, without limiting the broad decision making participation of both parents.

Conditional Joint Decision Making – If there is a willingness to try to work together, but a fear that there could be breakdowns in consensus from time to time, parents can agree to apply creative tools to resolve conflicts when they arise. For example:

• Mediation – They can agree to obtain input from a mediator (a skilled dispute resolution professional) if they are stuck on any significant issue. 
• Separate Decision-Making Spheres – They can agree that one parent will handle one category of decision (say educational) while the other will handle another (say medical). 
• A Protocol for Tie-Breaking – They can agree to alternate in serving as the tie- breaker as contested issues arise, or they can agree that one will be the tie breaker in relation to certain issues and the other in relation to other issues. 
• Therapeutic Support – They can agree to consult with a parenting coordinator or counsellor to receive expert advice as to the needs of children of divorce on the issue in conflict. 

There are a host of solutions that parties can devise, between themselves, or with the help of able Family Law Lawyers, to make sharing decisions about their children easier. At the end of the day, where both parties are able to participate in the lives of their children to the greatest extent that they are willing and able, and conflict is reduced, children are the winners. 

The key to offering your children their best outcome is to work with a Family Law Lawyer who encourages low conflict, child centered outcomes. Skilled Family Law Lawyers are creative, curious as to your needs and your children’s needs and practiced in minimizing emotional harm through solutions for conflict reduction. At Bair Family Law, we are committed to guiding our clients into their future with solutions, restoration and healing.

Tessa M. Bair, Senior Lawyer

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