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Divorce Act: Decision-Making Responsibility

This is the second entry in a series covering practical implications of the Divorce Act amendments, which came into effect on March 1, 2021.

This article is not to be taken as legal advice.

Divorce Act Amendments: 

Decision-Making Responsibility – Cutting Down on All-or-Nothing Custody Outcomes

“Custody”, perhaps the first word that comes to mind when people hear about divorces with children involved, is being phased out of Canadian courts. “Sole custody” in particular is sometimes raised as a threat in heated arguments between separating couples: If you divorce me, I’m going to ask for sole custody and you’ll never see the kids again!

Naturally, this is not conducive to mutual respect and cooperation between separating parents.Custody implies complete capture and control. Indeed, people arrested and detained by police are deemed to be “in custody.”

With the March 2021 Divorce Act amendments, Parliament hopes to temper such “custody battles” by introducing less combative language. Parliament hopes that severing children of divorce from language of property possession will shift the focus to fostering each parent’s healthy relationship with the child.

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Why the Change?

“Decision-making responsibility”, although a lengthier term, is more expansive and permissive. (However, it should be noted that the term “custody order” has been replaced with “parenting order”, not “decision-making responsibility order” or anything like that.)

In the past, even with “joint custody” there was the potential to confuse what each parent was actually responsible for. Rather than limiting parents to the binaries of sole custody or joint custody, decision-making responsibility presumes an open conversation as the starting point, giving parents the opportunity to discuss what each parent should be responsible for and when.

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Entitlement to Information

A more robust allocation of parenting responsibilities can promote cooperation, or at the very least it reflects the need for mutual respect and an understanding that each capable parent should have an opportunity to contribute to their child’s care and development.

Accordingly, the Divorce Act at Section 16.4 provides that, unless there is a court order saying otherwise, anyone with decision-making responsibility or parenting time is entitled to request and receive information from either the other parent or third parties about their child’s well-being. This can include the child’s healthcare or schooling information; of course, this is subject to any applicable privacy laws.

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Scenario: Practical Implications

Sole or joint custody assume that, respectively, either one parent has everything that the child needs or that both parents bring equal parenting skills to the table. These terms fail to recognize that each parent may bring very different, but still crucial things to the table in facilitating their child’s healthy development.

For example, Archie and Veronica are at odds over “custody” of their son Jughead. Veronica has always been Jughead’s primary caregiver. Jughead’s health and dental insurance are provided through Veronica’s work benefits, and Veronica is always the one to attend Jughead’s parent-teacher interviews and take him to his doctor’s appointments.

Archie understands that it’s in Jughead’s best interests to remain in Veronica’s primary care, but he is concerned because Jughead is of mixed ethnicity with a rich Chinese heritage from Archie’s side of the family. Before the separation, Archie and Veronica followed his family’s wishes to raise Jughead with the aim that he should keep up with Mandarin language lessons and be exposed to Buddhist religious practices. Archie speaks to Jughead in Mandarin and Veronica speaks to him in English.

Archie believes Veronica won’t or that she’ll be unable to keep Jughead attuned to these cultural and religious values now that they’ve separated. Archie notes that since the separation, Jughead is less confident speaking Mandarin when he visits his paternal grandparents and sometimes has trouble understanding when people speak Mandarin to him.

Archie also believes it is important for him to be an accessible presence in Jughead’s life, since Veronica might not be as capable of providing culturally sensitive support to Jughead once he gets older and grapples with his identity and place as a mixed-ethnicity adolescent.

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Decision-Making Responsibility in Practice

The court upon Archie’s application might be more open to carving a space of decision-making responsibility for Archie, so he can provide that important cultural, linguistic, or religious education and support to his son. This power to allocate decision-making responsibility is now explicitly granted to the courts under Section 16.3 of the Divorce Act.

In turn, a child’s cultural, linguistic, religious or spiritual upbringing and heritage, taking into particular account any indigenous heritage, are now codified along with many other “best interests of the child” factors in Section 16(3)(f) of the Divorce Act. The court has a duty to consider such factors when making a parenting order.

Decision-making responsibility allows the court to balance Veronica’s predominant role in Jughead’s care with Archie’s significant role in their son’s cultural or religious upbringing, without the sharp knives of sole custody or King Solomon-esque 50/50 joint custody.

Sole decision-making responsibility for one parent or 50/50 joint decision-making responsibility between parents are still possible under the amended Divorce Act, but like any other parenting order the courts will only grant these after carefully determining what would be in child’s best interests.

Because the list of factors for considering the best interests of the child under Section 16(3) of the Divorce Act are non-exhaustive, there may be other “best interest” factors a parent could raise when asking the court to allocate decision-making responsibility.

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This article covered some of the March 2021 Divorce Act amendments most relevant to decision-making responsibility, based on a specific fictional scenario.

If you have concerns about how the Divorce Act amendments could impact your personal circumstances, we encourage you to contact one of our lawyers for a consultation.

Please keep an eye out for more blog posts covering Divorce Act amendments soon!

About David

David completed his J.D. at Thompson Rivers University in 2020.  During law school, David volunteered with Pro Bono Students Canada on a research project examining the viability of opening mental health specialty courts in western Canada.  He also had the privilege of participating in University of Alberta Law Professor Peter Sankoff’s “100 Interns” project, aimed at providing legal mentorship to students and recent graduates when the pandemic reached Canada in spring 2020.

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