Sole vs Joint Decision-Making Responsibility in Ontario

When parents separate, one of the first questions is who gets to make the big decisions about the children. This used to be called custody. Ontario law now uses the term decision-making responsibility, though older orders and agreements still use the old word.

This article explains what decision-making responsibility covers, how it differs from everyday decisions, what sole, joint and divided orders mean, and how courts choose between them. It is general information, and a lawyer can tell you how it applies to your family.

What decision-making responsibility covers

Decision-making responsibility is about significant decisions concerning a child's well-being. These include health, education, culture, language, religion and spirituality, and significant extra-curricular activities.

Day-to-day decisions are different. The person who has parenting time has exclusive authority over day-to-day decisions during that time, unless the court orders otherwise.

The terms decision-making responsibility and parenting time replaced custody and access. If you have an older order or agreement, it may still use the old words, and it is worth asking a lawyer how it lines up with the current terms.

Which law applies to you

It depends on your marital status. The federal Divorce Act governs parenting between married spouses. Ontario's Children's Law Reform Act (CLRA) applies to unmarried or common-law parents and to married parents who are not divorcing. The two laws have parallel but separately numbered sections.

Under the CLRA, a child's parents start with an equal right to decision-making responsibility, whether or not they were ever married.

What changes after separation

If the parents live apart and the child lives with one parent with the other's consent, implied consent or acquiescence, the other parent's right to exercise decision-making responsibility is suspended until a separation agreement or court order says otherwise.

That suspension does not touch parenting time. Parenting time includes the right to visit with the child and to make inquiries and receive information about the child's well-being. Unless a court orders otherwise, a person with decision-making responsibility or parenting time may also ask for and receive information about the child's well-being.

Sole, joint and divided orders, and how courts choose

A court may allocate decision-making responsibility, or any part of it, to either spouse, to both, or to a non-spouse. This is how sole, joint and divided orders are made.

• Sole: one person makes the significant decisions.
• Joint: both parents share the significant decisions.
• Divided: one parent decides some areas, such as health, and the other decides the rest.

In choosing, the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. The best-interests factors include the child's needs given age and stage of development, the child's relationships, the history of care, the child's views and preferences, each parent's ability to communicate and cooperate, and family violence. They also include each parent's willingness to support the child's relationship with the other parent.

The list is not exhaustive, so a court may consider other factors while always giving priority to the child's safety. The court does not consider a person's past conduct unless it is relevant to their parenting time, decision-making responsibility or contact. Whether a joint or sole order fits depends on the facts of your family, and a lawyer can help you assess that.

Agreements and parenting plans

Separated cohabitants may agree in a separation agreement on decision-making responsibility and parenting time for their children. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed.

An agreement does not bind the court on these issues. A court may disregard a provision on decision-making responsibility or parenting time if that is in the child's best interests. When the court makes a parenting order, it must include a written parenting plan the parties have agreed on, though it may change the plan if that is in the child's best interests.

A good plan spells out how decisions will be made and what happens with the schedule, holidays and travel. Each parent should show the draft plan to their own legal adviser before signing.

What to do next

• Work out whether you are married and divorcing, because that decides whether the Divorce Act or the CLRA applies.
• Find any existing order or separation agreement and check whether it uses the old words custody and access.
• Write down which significant decisions matter most to your child, such as school, health care or religion.
• Think about whether a written parenting plan could resolve the issues without court.
• Speak with a family lawyer before signing an agreement or starting a court application.

Frequently asked questions