Raising children requires countless decisions, both big and small. When parents separate, determining who has the authority to make those bigger decisions becomes important. Questions about who chooses a child’s school, consents to medical treatment, or signs them up for extra-curricular activities can quickly become disputes between parents.
While many still use the familiar term “custody,” it is now referred to as “decision-making responsibility” under the Divorce Act and the Children’s Law Reform Act. The shift in language reflects a broader, more modern approach, one that moves away from parental entitlement and places the focus squarely on the child’s best interests. At its core, decision-making responsibility is about ensuring that important choices are made thoughtfully, collaboratively where possible, and always made with the children’s best interests in mind.
What is Decision-Making Responsibility?
The Divorce Act defines decision-making responsibility as the responsibility for making significant decisions about a child’s well-being, including in respect of
- health, education,
- culture, language, religion, and spirituality, and
- significant extracurricular activities.[1]
Day-to-day decisions, however, are generally made by the parent who is caring for the child at that time, unless a court order says otherwise.[2] These routine decisions include matters such as meals, clothing, bedtime, and daily schedules.
Types of Decision-Making Responsibility
Section 16.3 of the Divorce Act sets out that decision-making responsibility may be allocated to either spouse, to both spouses, or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
Importantly, regardless of how decision-making responsibility is allocated, any person with parenting time or decision-making authority has the right to access information about the child’s well-being. This includes information about health, education, and general development, whether from the other parent or from third parties such as teachers, doctors, or caregivers.
Joint Decision-Making Responsibility
In this type of arrangement, both parents share the authority to make major decisions about their child. This requires ongoing communication and a willingness to cooperate, even when the relationship between the parents is strained.
Both mutual trust and respect are basic elements for joint decision-making responsibility to work effectively. While courts do not expect communication between parties to be easy, comfortable, or free of conflict, there must be a reasonable measure of communication and cooperation in place so that the best interests of the children can be ensured on an ongoing basis.[3]
In S.S. v. S.K. 2013 ONCJ 432, the court set out that dynamics of a family must be assessed when determining if a joint decision-making responsibility is appropriate. Particularly, it must be examined whether granting such an order is:
- more or less likely to de-escalate or inflame the parents’ conflict;
- more or less likely to expose the child to parental conflict; and,
- whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.[4]
In certain cases, courts may order joint decision-making responsibility but provide one parent with the authority to make the final decision if the parents cannot agree.
Split/Parallel Decision-Making Responsibility
In a split or parallel arrangement, each parent is given authority over specific areas of the child’s life. For example, one parent may make decisions about education while the other handles medical matters.
This structure is often used when parents have difficulty communicating or experience ongoing conflict. By clearly dividing responsibilities, it reduces the need for frequent interaction while still allowing both parents to play an active role in important aspects of the child’s life.
Sole Decision-Making Responsibility
When a parent has sole decision-making responsibility, they are responsible for making all important decisions for the child(ren). The parent with sole decision-making responsibility does not need to obtain consent from the other parent to make a major decision. While consulting with the other parent is recommended, it is not required.
Sole decision-making responsibility is often ordered in situations where cooperation is not possible, or where it would not be in the child’s best interests to require joint decision-making.
Legal Considerations
If parents cannot come to an agreement regarding decision-making responsibility outside of the court process, a formal request to the court must be made. This is done by one parent filing an Application seeking such relief with the court.
In making its decision, the court is guided by one central principle: the best interests of the child. Both the Divorce Act and the Children’s Law Reform Act set out that in determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including:
- 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 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.[5]
No single factor is determinative. Rather, the court weighs all relevant circumstances to arrive at an outcome that best supports the child’s overall welfare.
Decision-making responsibility is one of the most important aspects of parenting after separation. While the legal terminology may have evolved, the underlying goal remains the same: to ensure that children are supported, protected, and given the opportunity to thrive. Understanding how decision-making responsibility works can help parents approach these issues with greater clarity, reduce unnecessary conflict, and make informed choices during a challenging time.
At Northern Law LLP, we understand that questions about decision-making responsibility can be overwhelming, especially during or after a separation. Whether you are trying to reach an agreement or navigating a dispute, our experienced family law team provides clear guidance, practical advice, and strong advocacy every step of the way. We work closely with our clients to protect their role in their children’s lives while keeping the focus where it belongs. Northern Law LLP is here to support you with knowledgeable and compassionate legal counsel. Contact us today at (705) 222-0111 or info@northernlaw.ca.
[1] Subsection 16.2(2) of the Divorce Act, RSC 1985, c 3 (2nd Supp)
[2] Subsection 16.2(2) of the Divorce Act, RSC 1985, c 3 (2nd Supp)
Subsection 28(6) of the Children’s Law Reform Act, RSO 1990, c C.12
[3] L.B. v. P.E., 2021 ONCJ 114 (CanLII) at paras 95 and 96
[4] S.S. v. S.K., 2013 ONCJ 432 (CanLII) at para 33
[5] Section 24 of the Children’s Law Reform Act, RSO 1990, c C.12
Section 16 of the Divorce Act, RSC 1985, c 3 (2nd Supp)