If you have been a party to a family law matter involving children prior to March 1, 2021, you may be familiar with the terms “custody” and “access”. However, as of March 1, 2021, amendments to the Divorce Act and Children’s Law Reform Act (“CLRA”) took effect, thereby replacing these terms with concepts that focus more on relationships with children, namely, “decision-making responsibility” and “parenting time”. If your court Order or Separation Agreement pre-dates the legislative changes, the terms remain valid, but the terminology has changed as follows:

• The term “decision-making responsibility” is defined in section 2(1) of the Divorce Act and section 18(1) of the CLRA as the responsibility for making major decisions about a child’s wellbeing, including their health; education; culture, language, religion and spirituality; and significant extracurricular activities.
• The term “parenting time” is defined in section 2(1) of the Divorce Act as the time that a child of the marriage spends in the care of either or both spouse, or a person other than a spouse who is a parent of the child, stands in the place of a parent, or intends to stand in the place of a parent, whether or not the child is physically with that person during that entire time. Section 18(1) of the CLRA also defines “parenting time” as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.

If you have not already formalized a decision-making and/or parenting arrangement in your family law matter, there are numerous arrangements that can be catered to your family’s specific needs. In the event of a disagreement, out of court processes exist, like mediation (involving a non-binding negotiation facilitated by a neutral third-party), arbitration (involving a binding decision facilitated by a neutral third-party), and even a combination of the two, but some cases necessitate court intervention. A court will consider only the best interests of the child in making a parenting order (see section 16(1) of the Divorce Act and section 24(1) of the CLRA). In determining an appropriate parenting time arrangement, a court will allocate as much time with each party as is consistent with the best interests of the child, pursuant to section 16(6) of the Divorce Act and section 24(6) of the CLRA.

Tips to consider in formalizing decision-making responsibility and parenting time in your family law matter:

• If you and the other party are amicable and able to make decisions jointly, you may consider formalizing joint decision-making so that decisions can continue to be made about the child(ren) together post-separation.
• Creative solutions exist depending on the needs of your specific family. For example, a nesting arrangement may be appropriate where parties share parenting time, jointly own a matrimonial home, and want to avoid disrupting the child(ren)’s routine during the school year. This option usually involves the parties alternating residence in the matrimonial home during their respective parenting times so that the children continue to reside there full-time and residing elsewhere during their non-parenting time. This is meant as a short-term solution only until final arrangements can be made.
• If there is contention about a major decision, consider language that includes a dispute resolution framework (like mediation), or building in a provision requiring consultation with an involved professional in the event of an impasse (such as a child’s doctor regarding a health treatment decision, or a child’s teacher in the case of a major educational decision).
• For situations where communication has broken down between parties, a sole decision-making arrangement and/or primary parenting arrangement may be more appropriate.
• In cases where one parent has primarily been responsible for the care of the child(ren), a graduated step up in the other parent’s parenting time may be most appropriate to give the child(ren) a chance to adjust to more time with that parent.
• Consider a Parenting Coordinator (“PC”) in high conflict situations to assist when there is an impasse on interpretation or implementation of the plan, and/or challenges with the day-to-day decisions.

The above are only a few of the many options available for families depending on the best interests of the children and the family’s specific needs. If you need help formalizing a parenting and decision-making framework for your family, our office is happy to help. Reach out to schedule a consultation to learn more.