Decision-Making Responsibility: What Does It Mean and Why Don't We Use the Term Custody Anymore?

In March 2021, under the new Divorce Act, changes were made to the language regarding who makes decisions for the child(ren). Many people are familiar with the previous term, “custody”. However, this has been changed to “decision-making responsibility” to provide for a clearer understanding of what legal rights are entailed, as “custody” was not self-explanatory, while “decision-making responsibility” is. The different types of decision-making responsibility and a brief description of each are outlined below.

Decision-Making Responsibility formerly referred to as “custody”, refers to the authority to make major decisions about a child(ren), including matters related to their education, health care, religion/spirituality, and significant extracurricular activities. Decision-making responsibility can be sole, joint, or shared.

Sole Decision-Making Responsibility

A parent who has sole decision-making responsibility for their child(ren):

• Has the right to make important decisions about their care, education, religion/spirituality, and welfare (unless the agreement or court order says otherwise).

• Does not need to involve the other parent when making decisions (unless the agreement or court order says otherwise).

• Sometimes even though a parent has sole decision-making responsibility, they may be required by the court to consult the other parent before making a major decision. However, the final decision lies with the sole decision maker.

  
  

Joint Decision-Making Responsibility

Parents who have joint decision-making responsibility for their child(ren):

• Share the right with the other parent to make major decisions about their children together.

• If parents cannot decide together on a major decision, they may need to seek court intervention, or other alternative dispute mechanism to assist in making the decision.

Shared Decision-Making Responsibility

Parents who have shared decision-making responsibility for their child(ren):

• One parent is responsible for some decisions (for example, on health and religion), and the other parent is responsible for other decisions (for example, on education).

The determination of decision-making responsibility is guided by the principle of the “best interests of the child” as outlined in both the Divorce Act and the Children’s Law Reform Act, which include assessing things like the status quo, otherwise known as what the parents have normally done with respect to decisions. If one parent normally made all of the major decisions for the child(ren) before separation, that may suggest that a sole decision-making arrangement would be appropriate in the circumstances moving forward. However, a full “best interests” analysis would need to be completed to understand if that is the case, as there are several factors that need to be balanced when determining what is in the best interest of your child(ren), not just a review of the status quo.

If you’re looking for more information about decision-making responsibility, whether as a self-represented person or not, reach out to a qualified lawyer at Hines Legal for tailored independent legal advice.

DISCLAIMER: The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer before choosing to act on any information included in the blog.