When navigating through divorce or separation, it is important to ensure that your children are supported along the way.

At the heart of every court and decision maker is the paramount principle – what is in the best interest of the child. This principle is prioritized to ensure that decisions affecting children protect their well-being, safety and development, and not the parents’ preferences or interests.

Under the Divorce Act, the best interest of the child principle takes into consideration a list of factors when making decisions about parenting arrangements. This principle applies to all matters involving children, including parenting time and decision-making responsibilities.

How The Family Law Act Protects Children

Under the Family Law Act, the best interest of a child principle takes into consideration possible disruptive effects on the child, and the view and preferences of the child.

After a divorce or separation, parents need to establish parenting arrangements. Parenting arrangements include:

• Where will the children live?
• How often will the children spend time with each parent?
• Who will be responsible for major decisions of the children?

Decision-making refers to the responsibility to make significant decisions about the child’s upbringing, welfare and care.

Major decisions about the children include decisions related to:

• Education, including choice of school, special education needs.
• Healthcare, including medical treatment, mental and physical health support.
• Religion and spiritual upbringing
• Extra-curricular activities
• General well-being

Day-to-day decision making refers to routine decisions, including the time they go to bed, curfew, what clothes they wear, etc. These decisions are often shared by the parents in the everyday caregiving context.

Types of Decision-Making Responsibilities

There are different types of decision-making responsibilities which parents can agree to:

1. Sole Decision-making – where one parent is granted sole-decision making responsibility, they have the right to make the important decisions about the child’s care, education, welfare, without the involvement of the other parents. In some cases, courts will grant sole-decision making responsibility and still order the other parent to be involved in certain major decisions.
2. Joint Decision-making – where joint-decision-making is granted, both parents share the right to important decisions of their children and both parents are jointly involved. This means both parents must be able to co-parent and communicate with each other.
3. De Facto Decision-making – where there is no formal decision-making arrangement made, and one parent leaves but the children remain with the other parent, that parent has de facto decision-making responsibilities of the children. This means the parent which left cannot exercise their decision-making responsibility unless there is a separation agreement, or a court determines the decision-making responsibility.

Parenting Time

Parenting time refers to the time the children are in your care, regardless of whether they are physically with you or at school.

It is important to know that only parents can apply for parenting time. Non-parents must apply for a contact order through the courts.

Further, while parents have an automatic right to parenting time, a court can decide not to grant parenting time if they believe it is not in the best interest of the child. A court may refuse parenting time if they fear that the child will be in harm.

Parents can decide how to arrange their parenting time:

• It can be written in detail in a parenting plan, separation agreement or court order.
• It could be specific to how holidays and birthdays will be celebrated and with which parent, as well as specific to if the children will be with you every other weekend or other arrangement.
• It could be left open allowing both parents to co-parent and work out their arrangements in a more flexible manner.

There are also different types of parenting time:

1. Shared parenting – where parents agree to co-parent, and the child lives with each parent at least 40% of the time.
2. Split parenting – where parents have more than one child and each parent have at least one child living with them for majority of the time.
3. Supervised parenting – where there are safety concerns during visits, supervised parenting time ensures there must be someone else present during the exchanges and visit times. Supervised parenting can take place with a government professional through supervision access centers, a paid professional, such as a social worker, or even a friend or relative.

Parents can amicably agree on how they wish to share parenting time and their decision-making responsibilities. This can be done by way of a written parenting agreement or separation agreement.

Parenting arrangements and decision-making responsibilities can be stressful and complicated.
To ensure your parenting rights are protected, please contact us.

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