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How is Decision Making Responsibility Decided?

Ideally, parents who split up will agree on what would be the arrangements for their child. This should be done with a focus on the child’s best interests. One of the things to be agreed on is sort of a “meta” question: who gets to make future decisions?

Parenting Plans:

A Parenting Plan is the written summary of that agreement. It typically forms part of a larger Separation Agreement or Parenting Agreement. Jointly making a Plan avoids having a judge impose such arrangements.

Parents can try using mediators, counsellors or social workers if they need help agreeing on a Plan. Lawyers acting for each parent can attempt to negotiate and draft a comprehensive, legally-binding Plan flexible enough to adapt to the family’s changing needs. A good Plan can head off potential conflicts before they even start.

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If the parents can’t agree on a Plan, a court will determine how to allocate parental decision-making responsibility (DMR) (formerly called “custody”) and parenting time (formerly known as “access”). The judge will consider many factors, but the best interests of the child are always the court’s overriding concern. This may be different than the child’s wishes or even the preferences of either parent (if both parents are being selfish or unreasonable).

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Decision Making Responsibility:

A parent with DMR is legally recognized as having primary responsibility for making major decisions about how to raise and care for the child. This includes decisions about the child’s residence(s), education, extracurricular activities, language(s), religion (if any), and medical care. The parents may have joint DMR if both agree to this, or a court decides it is in the child’s best interests.

Decision-making responsibility is different than parenting time. Even if both parents share DMR, the child possibly might live primarily with one parent. Conversely, even if one parent has exclusive DMR, the other parent potentially could have roughly equal parenting time.

A parent with any entitlement to parenting time also has a right to get information about the child from the other parent and certain third parties (e.g., the child’s schools, doctors, and hospitals). When parents have joint DMR, and each has at least 40% of total parenting time, this is sometimes called “co-parenting”.

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A child is constantly growing, and the world is continually changing. Life is inherently unpredictable. A Parenting Plan originally designed for a toddler may not work well for a teenager. Or perhaps one parent eventually will want to relocate for work.

Ideally, the original Plan should anticipate the need for future changes by clearly defining methods for the parents to agree on them, or a dispute-resolution mechanism if they can’t agree. If the original Plan failed to cover this, and there is a material change in circumstances, a court can modify DMR and parenting time — always putting priority on the child’s best interests.

If you have any questions, please feel free to contact Shulman & Partners LLP by calling (416) 661-2777 or emailing us at info@shulman.ca. We are always more than happy to help you.

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