In contentious divorce proceedings, the decision as to which parent is competent to take the primary responsibility of the child is of significant importance. The determination of decision making responsibility (formerly called “Child Custody”) involves a great deal of contemplation as most decisions about important aspects of a child’s life are made through it.
In Canada, both parents have a right to bring up their children and make decisions about their children. Therefore, the law has established a dynamic to determine the decision-making responsibility and parenting matters based on “best interests of the child”.
Defining Decision-Making Responsibility?
Under the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.), decision-making responsibility is defined as the responsibility of making important decisions about the well-being of a child including the child’s education, health, culture, religion and other extracurricular activities. In its constricting sense, it means simply “care and upbringing” or, to use a more clear but unfortunate phrase, ‘possession’.
Issuance Of Decision-Making Responsibility
The Courts allow the application by the virtue of Section 16 (1) Divorce Act 1985. One or both of the parents or custody lawyers on their behalf, to make an order in relation to the decision-making responsibility or parenting time (or both) of any or all children of the marriage.
Under Section 16.3 Divorce Act 1985, the court can allocate the decision-making responsibility as a whole, or in any part, solely to one person or jointly to more than one person. Cutting through legalese, what this implies is: the responsibility can be allocated to each spouse jointly or solely to one spouse or the responsibilities can be divided i.e. the responsibility of health and education can be allocated to one parent while the religious and cultural activities of a child can be maintained by the other parent.
Types Of Decision-Making Responsibility
There are generally three forms of decision-making responsibility. These are sole decision-making responsibility, joint decision-making responsibility and shared decision-making responsibility. In making any order, the Court has to ensure that the arrangement is in the ‘best interest of the children’.
1. Sole Decision-Making Responsibility
Sole Decision-Making responsibility is when one parent is granted full parental control and ultimate parental responsibility for the care, upbringing and education of the child, to the exclusion of any interference by the other parent. This does not mean that the parent with sole decision-making responsibility will not permit the other parent to be involved in the child’s life whatsoever. Parental conduct of each parent may be considered, but only to the extent to which it can have a direct effect on the parent’s ability to guide and help a child. It is significant to note that under the ‘tender’ years’ doctrine, the children in their ‘tender’ years (normally the age of 4 and under) preference is given to the mother over the father. Canadian family law has undergone remarkable changes over the past twenty years.
Beginning with the passage of the federal Divorce Act in 1968, this transformation has been inspired by two fundamental principles: the juridical equality of men and women, and the autonomy of spouses and unmarried cohabitants to determine the form and content of their own relationships free of definition by the state.
For custody law, these developments have had two immediate consequences: first, the disappearance of presumptions based solely upon the gender of the claimant; second, the decline of matrimonial fault as a basis for awarding custody to the “innocent” party.
2. Joint Decision-Making Responsibility
Joint decision making is where parental control and responsibility for the care, upbringing and education of the child is carried out by both parents. Thus, both the parents have to make the decisions together and one parent cannot carry out the decision making for the child with exclusivity.
However, it is important to note that joint decision-making does not equate to equal access, and pertains more to the sharing of decision-making powers of the parents rather than physical access and control of the child. The joint-decision making responsibility does not imply that the children are required to reside on the premises of both parents.
Although the Courts can without application make a joint decision-making order, it is to be noted that it requires willingness by the one or both of the parents to do so; it is not something which can be issued if one parent drops the responsibility, and must be in the ‘best interest of the child’ (Kruger v Kruger 1979).
3. Shared Decision-Making Responsibility
Shared decision-making responsibility is an arrangement where the child or children are required to spend at least 40% of their time with both parents. This time is based upon the number of hours each parent is ‘responsible’ for the child rather than the time each parent is physically with the child. For instance, the time spent at school will be attributed to the parent who is responsible at that time for the child.
Our Expert Lawyers Can Guide You
In order to determine the best and most functional decision-making responsibility arrangement, which also best reflects the ‘best interest of the child(ren)’, we recommend you get in touch with our experienced Family/Divorce Lawyer to discuss legal decision-making, parenting time and other issues relating to divorce. Ayaz Mehdi Professional Corporation can assist you with your matter at cost-effective prices.
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