Decision-Making Responsibility Clauses in an Ontario Separation Agreement

When parents separate, one of the most important questions is who gets to make the big decisions about the children: medical care, schooling, religion and similar choices. These are different from daily matters like bedtime or meals.

This article explains what decision-making responsibility means in the Divorce Act and how parents often word joint, sole or split clauses. How those ideas apply to your own agreement depends on your situation. The wording below is for general understanding, and a lawyer should review any clause before you sign.

What decision-making responsibility means

The Divorce Act defines decision-making responsibility as the responsibility for making significant decisions about a child's well-being. In practice, those are usually health, education, religion and significant extracurricular activities.

It is different from parenting time. Unless the court orders otherwise, the person who has parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. Think of day-to-day decisions as what happens at home on an ordinary evening, and significant decisions as choices that shape the child's life.

When a court decides parenting matters under the Divorce Act, it considers only the best interests of the child. Parents writing their own agreement may find it helps to ask the same question. How far an agreement can go depends on your situation, so it is worth confirming with a lawyer.

Joint, sole or split: the options

The Act says decision-making responsibility, or any aspect of it, may be allocated to one spouse, both spouses, or a combination. That gives parents three broad models.

Because any aspect can be allocated separately, you do not have to choose one model for everything. For example, parents might share education decisions and give one parent final say on medical matters because of that parent's role in the child's care.

Wording clauses for health, education and religion

Clear clauses name the area, say who decides, and describe the process. Here are the points to cover for each area.

• Health: who chooses the family doctor, dentist and other health providers; how non-emergency treatment and major procedures are decided; and how each parent is told about emergencies and has access to health information.
• Education: which school the child attends, whether the child changes schools, and decisions about special programs, tutoring or support services.
• Religion: whether the child is raised in a particular faith, who decides about religious education or ceremonies, and whether each parent may share their own faith or culture with the child during their time.
• Activities: how significant extracurricular activities are chosen, and how scheduling and cost are handled.

An example for a joint clause: the parents will make significant decisions about the child's health and education together, after consulting each other in writing and allowing at least a stated number of days to respond, except in an emergency. Then add what happens if you cannot agree.

If money is involved, be precise. Some child-related costs, such as child care tied to employment, health-related expenses that exceed insurance reimbursement by at least $100 annually, and extraordinary extracurricular costs, can be added to table child support as special or extraordinary expenses. Ontario drafting guidance says to set special expenses either as a fixed amount or as expenses the recipient claims on a sworn statement of arrears, to use the word pay rather than share, and warns that FRO may be unable to enforce special expenses that are not set out this way.

Disagreements, communication and changes

Joint decision-making only works if there is a way to break a deadlock. The Divorce Act says parties should, where appropriate, try family dispute resolution such as negotiation, mediation or collaborative law. Many agreements name a step before court, such as mediation, and set timelines for each step.

The Act also requires parties to protect any child from conflict to the best of their ability. Consider setting a communication method, such as email or a shared app, and a reasonable response time.

Circumstances change. Only a court can change a support order or domestic contract. To change a domestic contract, the parties negotiate a new one and file it with the court using form 26B. Ontario.ca also notes that separation agreements are hard to change later, and that each spouse should have their own lawyer review the agreement.

What to do next

• List the significant decisions you expect over the next few years: doctors, school, religion, activities, travel.
• Decide for each area whether it will be joint, sole or split, and note why it suits your child.
• Write down the process for consulting, responding and resolving disagreements, including an emergency exception.
• Tie any related costs to clear wording, using fixed amounts or sworn claims and the word pay.
• Have a family lawyer review the clauses and the whole agreement before signing.

Frequently asked questions