- Health is one of the significant decisions covered by decision-making responsibility, and a court can give it to one parent, both, or split it between them.
- When parents cannot agree, a court looks only at the child's best interests, with primary consideration to the child's safety, security and well-being.
- Agreements are easier to enforce when they are in a separation agreement or court order than when they are informal.
Few disagreements between separated parents feel as sharp as a clash over a child's health. One parent may want a vaccine, a particular treatment or a referral to a doctor who treats one condition, and the other may refuse. Because the child's well-being is at stake, the stress can be high on both sides.
This article explains how decision-making works under Ontario family law, what options exist before going to court, and how a court generally approaches a dispute. It does not set out any special rule for vaccines in particular. How your situation is handled depends on your existing order or agreement and on the facts, so a lawyer can confirm your position.
What decision-making responsibility means
Under the federal Divorce Act, decision-making responsibility means the responsibility for making significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extracurricular activities. Since March 1, 2021, this term has replaced what used to be called custody.
Ontario's government guidance uses the same terms for all parents, and a parenting order is a legal order setting out decision-making responsibility or parenting time that the court can enforce. Parents who were never married, or who are not divorcing, cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act.
Joint, sole or divided decisions
Decision-making responsibility, or any aspect of it, may be allocated to either spouse, to both, to a non-spouse parent or person standing in the place of a parent, or to any combination of them. Justice Canada describes joint, sole and divided arrangements.
| Arrangement | How it works |
|---|---|
| Joint | Responsibility may be allocated to both parents. |
| Sole | Responsibility may be allocated to one parent. |
| Divided | Each parent decides different areas, such as health or education. |
Check your own order or agreement first, because it sets out who is responsible for which decisions. How this applies to a particular decision, such as a major medical choice, depends on your situation, so it is worth confirming with a lawyer.
Day-to-day decisions and access to information
Unless the court orders otherwise, the person exercising parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. That usually covers routine matters such as giving ordinary care while the child is with you, as opposed to significant health choices.
Unless the court orders otherwise, a person with parenting time or decision-making responsibility may request information about the child's well-being, including health and education information. Asking for records or appointment details is often a calmer first step than arguing over the decision itself.
Ways to resolve it before or alongside court
- Talk it through using the child's own health providers' advice, and keep the conversation in writing so it stays calm and clear.
- Try mediation. Free family mediation is available at Ontario courthouses on the day you are in court, and off-site mediation is charged on a sliding scale based on income and number of dependents.
- Consider parenting coordination if you already have an order or agreement and a history of serious conflict. The coordinator is usually a mental health professional or lawyer and can decide how to interpret the order or agreement. Justice Canada describes it as a usually paid private service in which the coordinator makes a determination in the children's best interests if settlement is not possible, and both parents are bound by it.
- Consider family arbitration. Both people must get independent legal advice and a certificate before it starts, and matters involving children must be decided in the child's best interest.
If you reach agreement during a case, you can ask a judge to make an order on consent. A plan that is informal can be difficult to enforce, while one included in a separation agreement or court order is stronger.
When a court decides, and what to do next
When a court makes a parenting order, it considers only the child's best interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. The factors include the child's needs given their age and stage of development, the history of care, each person's ability and willingness to care for the child and to communicate and cooperate, and the child's views and preferences. The child's views get due weight according to age and maturity, unless they cannot be ascertained.
Past conduct, such as a mental health history, is not considered unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact. A judge can also order the Office of the Children's Lawyer to provide a voice of the child report, typically for children over seven.
A court can write tailored terms into an order, and it may impose any terms, conditions or restrictions it considers appropriate. In most cases a party must attend at least one case conference before bringing a motion for a temporary order, though this does not apply in cases of urgency or hardship. If an order already exists and circumstances change, the court must be satisfied there has been a change in the circumstances of the child before varying it.
- Reread your order or agreement to see who holds decision-making responsibility for health.
- Ask for health information you are entitled to and keep records of requests and replies.
- Try mediation or another agreed process before filing.
- Get legal advice before acting alone on a disputed medical decision, since a court order must be followed.
- If safety is at immediate risk, speak to a lawyer promptly about urgent options.
Frequently asked questions
Can one parent decide on a vaccine alone?
It depends on your order or agreement. Health is part of decision-making responsibility, which can be joint, sole or divided. A lawyer can read your documents and tell you who holds that decision.
What if my order says we decide together and we cannot agree?
You can try mediation or another agreed process, or ask the court to decide. A court considers only the child's best interests. A judge can also hear from the child through the Office of the Children's Lawyer in some cases.
What happens if a parent ignores a parenting order?
A person subject to a parenting order must comply with it until it is no longer in effect. If it is not followed without good reason, the court can act against the person, including a fine or jail.
Can the order be changed later?
Parents can update an agreement by agreeing, but a court order can only be changed by a new decision from the court. For a contested change, the court must be satisfied there has been a change in the circumstances of the child.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 2(1) — Justice Laws (federal)
- Justice Canada, Making plans: A guide to parenting arrangements after separation or divorce, Section 4 — justice.gc.ca
- Ontario.ca – Parenting time, decision-making responsibility and contact — ontario.ca
- Ontario.ca – Child abduction by a family member — ontario.ca
- Divorce Act, s. 16(1)–(2) — Justice Laws (federal)
- Divorce Act, s. 16.1(4) — Justice Laws (federal)
- Divorce Act, ss. 7.2, 7.5 — Justice Laws (federal)
- Justice Canada, Making plans, Section 6 — justice.gc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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