Long are the days of “Custody” and “Access” in family law as these terms were amended on March 1, 2021, in the Children's Law Reform Act. Decision-making responsibility replaced “custody”, parenting time replaced “access” and access by a non-parent to the child became "contact". The purpose of these changes was to modernize family law to meet the responsive needs of families which shifts the focus to the best interests of the child(ren) and actual tasks of parenting. In this blog, I will go over the new terms and what to consider should you find yourself in divorce litigation.
Firstly, I want to go over the three different types of decision-making responsibility which can be broken down as follows:
1) Sole decision-making responsibility – This means that one parent has the right to make the final decisions regarding the upbringing and wellbeing of the child(ren). The other parent still has the opportunity to voice his/her thoughts and opinions but the final decision rests upon the parent who has sole decision-making responsibility.
2) Joint decision-making responsibility – This means that both parents have equal rights to make the decisions regarding the upbringing and wellbeing of the child(ren). The most important factor that the courts will look at when granting joint decision-making responsibility is the parent’s ability to cooperate. The parents need to be able to set aside their conflicts and focus on the best interests of the child when making decisions. If the parents are not able to achieve this, the courts will be reluctant to grant joint decision-making responsibility.
3) Split decision-making responsibility – This means that both parents have sole decision-making responsibility for one or more of the child(ren). An example of this would be that the son lives with the father and the daughter lives with the mother. If split decision-making responsibility is granted, it is usually because the children are old enough to express their own opinion as to who they want to live with and what they want. The children’s opinions would be given a considerable amount of weight when the court makes its decision.
While joint decision-making responsibility is the most common, it may not always be the best fit. You must understand the facts of your situation and should seek the professional assistance of a lawyer to determine what is best suited for you.
Secondly, I want to go over parenting time which refers to the amount of time a child spends in the care of a parent after divorce or separation. A step-parent or grandparents can also obtain parenting time but will have to apply to the courts for a contact order. It is in the best interest of the child(ren) to spend time with both parents, barring any exceptional circumstances such as domestic violence, but the time spent with each parent does not have to be equal. The amount of time spent with each parent can follow a strict schedule, such as weekdays with the mother and weekends with the father, or can be negotiated between the parents to create a flexible schedule. One thing to keep in mind is that parenting time gives you the right to spend time with the child but does not give you the right to decision-making responsibilities to the child’s upbringing and wellbeing. You may request updates or information such as a copy of your child(ren)'s report card but decisions regarding the child(ren) are reserved for the parent who holds the right to decision-making responsibility.
Parenting time can be categorized as unsupervised or supervised. Unsupervised parenting time involves time spent with the child in an open and free environment where no third party is present to monitor the parenting time. Supervised access refers to the time spent with a child under the supervision of a third party such as a relative, social worker, or at a supervised parenting time centre. Supervised parenting time is a good option to pursue if you are concerned about your child(ren)’s safety while also allowing your child(ren) to spend time with the other parent. Some examples where you may want to ask for supervised parenting time is if the other parent has a history of domestic or substance abuse. Supervised parenting time is usually on a temporary basis. If the parent exhibits good behaviour, that their visits are beneficial to the child, and respects the parenting order, they can progress to unsupervised parenting time.
Lastly, please keep in mind that despite what the parents want, the courts will always grant orders regarding parenting time and decision-making responsibilities in light of the best interests of the child(ren).