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Under the federal ''[[Divorce Act]]'', someone who is a "spouse" may have ''decision-making responsibility'' and ''parenting time'' with a child. Under the provincial ''[[Family Law Act]]'', someone who is a "guardian" may have ''parental responsibilities'' and ''parenting time'' with a child. The difference in language can be a bit confusing, but you can assume that "decision-making responsibility" under the ''Divorce Act'' means pretty much the same thing as "parental responsibilities" under the ''Family Law Act'', and that "parenting time" means the same thing under both statutes.
Under the ''Divorce Act'', the parts of an order that talk about decision-making responsibility and parenting time is are called a "parenting order." A "parenting plan" is the part of a document, usually an agreement between spouses, that talks about decision-making responsibility and parenting time.
Under the ''Family Law Act'', the parts of orders, agreements and awards that talk about parental responsibilities and parenting time are called "parenting arrangements."
It's important to remember that parenting orders under the ''Divorce Act'' are to be made taking into account only the best interests of the child, applying the factors listed in section 16 of the act. The same requirement appears in the ''Family Law Act'', and the parties and the court must make decisions about parenting arrangements taking into account only the best interests of the child, and applying the factors listed at sections 37 and 38 of that act.
===Parental responsibilities and parenting time under the ''Family Law Act''===
<blockquote>"The parties are both guardians of [the child], the parties share parental responsibilities, and pursuant to s. 40(2) of the FLA there is a duty to consult with each other. The claimant does not have a unilateral or final say."</blockquote>
If a guardian does make a decision about a shared parental responsibility on their own, a ''unilateral'' decision, another guardian who disagrees with that decision can apply to court for an order for the decision they think is right. The child's guardians will each be able to explain to the judge why the decision they think is right is the decision that is in the best interests of the child, but there is no guarantee that the judge will agree with the guardian who made the unilateral decision. In the Supreme Court, that guardian also needs to be worried that the court will may make a costs order in favour of the guardian who made the application because of the time and expense involved in making that application.
====Children and healthcare decisions====
===Decision-making responsibilities and parenting time under the ''Divorce Act''===
Section 2(1) of the ''[[Divorce Act]]'' defines "decision-making responsibilitiesresponsibility" and "parenting time" relatively briefly:
<blockquote><tt>'''decision-making responsibility''' means the responsibility for making significant decisions about a child’s well-being, including in respect of</tt></blockquote>
<blockquote><tt>'''parenting time''' means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;</tt></blockquote>
The word "including" at the beginning of the definition of decision-making responsibility means that the sort of "significant decisions" that fall under the heading of "decision-making responsibility" isnaren't limited to just the four decisions listed in the definition. The longer list of parental responsibilities provided in section 41 of the ''Family Law Act'' can all be addressed in orders about decision-making responsibility under the ''Divorce Act''.
Section 16.1 talks about the kind of parenting orders the court may make:
When guardians can't agree on how parental responsibilities for a child will be shared, they can apply to court to get an order about how they'll be shared under section 45 of the ''Family Law Act''. Parents who are married can also apply for an order about how decision-making responsibility will be shared under section 16.1 of the ''Divorce Act''.
Orders about parental responsibilities and decision-making responsibility are either ''interim'' or ''final'', and, like agreements, cannot be made until the parents have separated. An "interim order" is an order that has been made after a court proceeding has been started but before the court proceeding has wrapped up with a final order made after trial or by a final order that is made with the agreement of the parties. Interim orders can be changed by other interim orders. A "final order" is an order that is made by a judge either after a trial or by the agreement of the parties. Final orders can be changed too, providing there has been an important change in the circumstances of a party or a child, but are otherwise intended to be permanent.
It's important to know that interim orders are intended to be a sort of rough-and-ready solution to the legal issues parents have to address after separation, and are only meant to last until a final order is made. They are short-term solutions intended to deal with immediate problems about things like where a child will live and the role each parent will play in raising the child. While interim orders will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements that are in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the parents get on with their court proceeding.
*each parent's character, fitness, and overall parenting capacity, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
*each parent's mental and physical capacity, again depending on the circumstances of the case and as long as issues like this are genuinely important and relevant, and
*the impact of any family violence, and the steps taken by a the parent responsible for the family violence to prevent further family violence from occurring.
There is no guaranteed way to predict the outcome of a court proceeding about the allocation of parental responsibilities and decision-making responsibility. In most cases, it seems that parental responsibilities and decision-making responsibility wind up being shared. Conflict between parents, including basic disagreements about parenting philosophy, is usually often resolved by making one parent the decision-maker in the event parents cannot agree on a particular decision or by dividing parental responsibilities and decision-making responsibility about particular categories of decision. Either way, the critical factor in orders about parental responsibilities and decision-making responsibility is the best interests of the child.
=====Sharing all responsibilities=====
(Section 49, if you're curious, says that "a child's guardian may apply to a court for directions respecting an issue affecting the child, and the court may make an order giving the directions it considers appropriate.")
Tie-breaker clauses like this are helpful because they ensure that important decisions do get made, even if a parent disagrees. The parent who disagrees has the right to go to court to challenge the decision, but also has to think about the time and money involved in making the application. Is the decision so important that the cost time and expense of going to court is are justified?
=====Sharing some responsibilities=====
*each parent has no say over the actions and decisions of the other parent when the children are in that parent's care,
*there are no expectations of flexibility between the parents,
*each neither parent cannot can plan activities for the children when they are with the other parent,
*communication between the parents is minimized and children are not asked to pass messages to the other parent, and
*when the parents must communicate, they do so by writing in a book that the children take with them from one home to the other.
When guardians can't agree on how parental responsibilities for a child will be shared, they can apply to court to get an order about how they'll be shared under section 45 of the ''Family Law Act''. Parents who are married can also apply for an order about how a child's parenting time will be shared under section 16.1 of the ''Divorce Act''.
Orders about parenting time are either ''interim'' or ''final'', and, like agreements, cannot be made until the parents have separated. An "interim order" is an order that has been made after a court proceeding has been started but before the court proceeding has wrapped up with a final order made after trial or by a final order that is made with the agreement of the parties. Interim orders can be changed by other interim orders. A "final order" is an order that is made by a judge either after a trial or by the agreement of the parties. Final orders can be changed too, providing there has been an important change in the circumstances of a party or a child, but are otherwise intended to be permanent.
It's important to know that interim orders are intended to be a sort of rough-and-ready solution to the legal issues parents have to address after separation, and are only meant to last until a final order is made. They are short-term solutions intended to deal with immediate problems about things like where a child will live and the role each parent will play in raising the child. While interim orders will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements that are in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the parents get on with their court proceeding.
However, the wrongful conduct of a parent will not establish a status quo that the court is likely to respect. If a parent is seeing a child too little or if the other parent is withholding parenting time, the court will act on an interim basis to expand the time the parent has with the child; if a parent has just picked up and moved away with a child, without an order or the agreement of the other parent to do so, the court may order the parent and child to returnbe returned.
It can otherwise be difficult to change a child's parenting time once a stable arrangement has been reachedestablished, and both parents should be very careful and consider their options if things come to the point where one parent has to move out of the family home. Interim orders can, however, be changed. Generally, a parent will apply to vary an interim order where there has been a change in circumstances that has affected the best interests of the child. Where there has not been such a change in circumstances, the interim order will usually stay as it was.
=====Factors=====
*each parent's character, fitness, and overall parenting capacity, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
*each parent's mental and physical capacity, again depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
*the impact of any family violence, and the steps taken by a the parent responsible for the family violence to prevent further family violence from occurring, and
*the wishes of the children, particularly those of children who are 10 or 11 years old or older, although the court isn't required to make the order the children would prefer.
=====Shared parenting time=====
Shared parenting time is a term used by the federal [[Child Support Guidelines]] to describe a kind of parenting arrangement in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared custodyparenting time, the children will usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. Shared parenting time arrangements can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age and maturity of the children, the parents' work schedules, and the schedules of the children's activities.
In many ways, this is an ideal way to share the children's parenting time as the children wind up spending an equal amount of time with each parent, have an equal opportunity to bond with each parent, and have an equal opportunity to by be parented by each parent. Shared parenting time usually requires that:
*the parents have good communication skills, usually resolve problems easily, and share information about the children and their wellbeing,
*the arrangement is in the best interests of the children.
Of course, there are downsides to this sort of arrangement. The strain of maintaining good communication with the other parent can be challenging, and it can be costly expensive to maintain a full set of clothing, shoes, toiletries, and supplies at each house, never mind a similar variety of entertainment and, no matter what, the children are still moving from one house to another one or more times each weeksports equipment.
=====Split parenting time=====
Under section 58(1) of the ''Family Law Act'', the guardian of a child can make a written agreement with someone who is not a guardian that they have contact with a child. (Under section 58(2), agreements like these are only good if they are made with all of the child's guardians who have parental responsibility for making decisions about the people with whom the child may associate.) Written agreements can be filed in court under section 58(3) of the act and, once filed, can be enforced just like they are orders of the court.
If agreement isn't possible, the person asking for contact can apply for a contact order under section 59 of the ''Family Law Act'' or under section 16.5 of the ''Divorce Act''. It's important to remember that people who are asking for contact orders under the ''Divorce Act'' can only ask for those ordersif:
*if there is an existing court proceeding between married spouses under the ''Divorce Act'', and
*the court first gives them permission to apply for contact under section 16.5(3) of the ''Divorce Act''.
==Assessments and reports about children and parenting after separation==
Making decisions about parenting after separation can be difficult, especially when parents are in high levels of conflict with each other, when their children are very young, when one or more of their children have special needs, and when one or both parents struggle with family violence, the use of alcohol and or illicit drugs, and personality and other mental health disorders. It's hard for parents and it's hard for judges and arbitrators.
While both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' say that the only consideration when making arrangements about decision-making, parenting time and contact is the best interests of the child, and provide lists of helpful factors that go into deciding the arrangements for parenting and contact that are in the child's best interests, sometimes what's needed is the input of a neutral professional, usually a mental health professional like a psychologist, a clinical counsellor or a social worker. This input is usually provided through the different kinds of assessments and reports, like parenting assessments and views of the child reports, that are available under the ''Family Law Act''. Other helpful reports can include psychological-educational reports about children's learning needs, reports from counsellors working with a parent or a child, medical assessments, and reports from physiotherapists and occupational therapists.
A full parenting assessment will make recommendations about the arrangements for parenting and contact that the professional believes to be in the bests interests of the children. They can also be asked to look at, and make recommendations about, specific issues such as a parent's mental health, a parent's capacity to care for the children or the impact of family violence.
Parenting assessment assessments can help parents who are trying to resolve issues about parenting after separation out of court, through negotiation, collaborative settlement processes, and mediation; in fact, parenting assessments often provide the input parents need to reach a settlement. They're also useful when parents are dealing with disagreements about parenting through litigation and arbitration. It's important to know, however, that while judges and arbitrators almost always appreciate the opinion of the professional who prepared the assessment, they're not required to accept the professional's recommendations.
Parenting assessments are available from Family Justice Counsellors, government employees attached to the Provincial Court, for free. Because these assessments are free, there's a huge demand for them and you can expect to have to wait months for the assessment process to begin and months for the process to complete.