The options available to the court include the following: 1. It may grant sole decision-making responsibility in all areas to one spouse.
2. It may grant joint decision-making responsibility in all areas to both spouses.
3. It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
4. Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
5. Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement. The Ontario Court of Appeal upheld this type of framework prior to the implementation of the recent Divorce Act amendments in the cases of T.J.L. v. E.B., 2019 ONSC 6096 (S.C.J.), aff’d 2021 ONCA 75 (C.A.) and Bourke v. Davis, 2021 ONCA 97 (C.A.).
As Lafrenière J. stated in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.) at para. 354, the ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.”
The following principles remain pertinent in determining whether it is in the best interests of the child to order joint decision-making responsibility in all or some areas respecting the child’s well-being:
1. There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA).
2. Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children. (Kaplanis; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.), at para. 446).
3. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement (Kaplanis; Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.), reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.)).
4. The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making (Berman v. Berman, 2017 ONCA 905 (C.A.), at para. 5).
5. The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children. As Quinn J. remarked in the often-quoted case of Brook v. Brook, 2006 CarswellOnt 2514 (S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.” The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord (Grindley v. Grindley, 2012 CarswellOnt 9791 (S.C.J.); Sader v. Kekki, 2013 ONCJ 605 (O.C.J.), at para. 115).
6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis, at para. 11; Ladisa). The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the turmoil reasonably well and make decisions in the child’s best interests when necessary, an order involving joint decision-making may be appropriate (Ladisa). The issue for the court’s determination is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).
7. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication (Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.);Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898 (CanLII), 2007 CarswellOnt 8271 (C.A.)).
Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707 (O.C.J.); Liu v. Huang, 2020 ONCA 450 (C.A.)).
Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions (Habel v. Hagedorn, 2005 ONCJ 242 (CanLII), 2005 CarswellOnt 3863 (O.C.J.); Garrow v. Woycheshen, 2008 ONCJ 686 (CanLII).
8. However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis; Ladisa; Graham v. Bruto, 2008 ONCA 260 (C.A.)).
This principle applies even where both parties are attentive and loving parents (Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), 2011 CarswellOnt 12097 (S.C.J.), at para. 504). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order that includes elements of joint decision-making responsibility (Kaplanis). There must be a clear evidentiary basis for believing that joint decision-making would be feasible (Iannizzi v Iannizzi, 2010 ONCA 519 (C.A.), at para. 2).
9. The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate (Milford. v. Catherwood, 2014 CarswellOnt 7879 (O.C.J.)).
10. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint decision-making order to issue. The determination of the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests (Kaplanis, at para. 10).
11. A party’s failure to financially support their children in a responsible manner may militate against an order for joint decision-making responsibility, as this reflects poor judgment and an inability to prioritize the child’s interests and needs (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)).
12. In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome.
13. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint decision-making arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).
14. The wishes of the child will also be relevant to the determination of the appropriate decision-making disposition in cases involving older children. Although a child’s wishes in such circumstances may not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).
15. Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime.
Conclusion:
The above analysis is from McBennett v. Danish 2021 onsc 3610 by the Honorable Justice Chappel. I strongly encourage any reader to review this case given the past areas that it covers in its entirety.
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