Decision-making responsibility was previously referred to as custody. Decision-making provides for how major decisions on behalf of a child will be made. This includes decisions relating to:
- Education
- Medical care
- Religion; and
- Major extracurricular activities.
Decision-making can be arranged in a number of ways including where one parent makes all the decisions on behalf of the child, where this responsibility is shared between parents, and situations where each parent is responsible for a specific decision (i.e. one parent decides issues of religion and the other is responsible for medical care). There are many other arrangements that may be made depending on the best interest of the children involved.
Parenting-time was previously referred to as access. Parenting-time deals with issues involving where the child will live and how often the child will spend with either parent. Parenting-time arrangements for a child are decided based on what is in the best interest of the child.
When parents are unmarried or have separated and chosen not to get a divorce, the Children’s Law Reform Act will govern parenting-time and decision-making for children. There are a number of factors pursuant to section 24 (3) of the Children’s Law Reform Act that courts must consider when determining issues of decision-making and parenting time as follows:
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
- The history of care of the child;
- The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- Any plans for the child’s care;
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
- (j) any family violence and its impact on, among other things,
- (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
If parents are married and are divorced or are trying to get divorced, the Divorce Act will govern parenting and decision-making responsibility. Based on section 16 (3) of the Divorce Act, the factors that a court considers when determining issues of decision-making and parenting-time include the following:
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- The history of the care of the child;
- The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- Any plans for the child’s care;
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- Any family violence and its impact on, among other things,
- The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
Although there are many factors for a court to consider when determining issues of decision-making and parenting-time, they will always be primarily concerned with the best interests of the children.
If you have questions about decision-making and parenting-time it is important that you speak to a lawyer who can provide you legal advice as to your particular situation.
