Decision-Making (Formerly Known as “Custody”)
With respect to decision-making/custody orders, it is common for the court to attempt to strike a balance between the parties’ positions. It is important to remember that there is a spectrum of possible scenarios between sole and a joint decision-making authority.
For example, there is a possibility of consultations between parents. This means one parent will have a final say after having considered the other parent’s position. Another option is to consider an advice of a professional involved in the child’s care. This means if the parties cannot agree on a medical decision, they would follow a doctor’s recommendation.
Sometimes, judges order split decision-making authority. Split decision-making is when each party is responsible for their own assigned jurisdictions. For example, one parent is responsible for religion and education while another parent is responsible for healthcare and activities.
Courts are required to consider the best interests of the children when determining the most optimal decision-making/custody orders. This analysis includes many factors. For example, one of the factors if one parent is asking for a joint decision-making, is the parties’ ability to communicate with each other. An ability to communicate is important when parties need to make decisions jointly. Otherwise, such decision-making/custody framework will fail. It may potentially require judicial intervention again.
In a case of Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), the Court of Appeal clarified certain issues. It stated that if one parent professes an inability to communicate it is not sufficient to decline a joint decision-making order. However, one cannot rely on an assumption that an already dysfunctional communication would increase in the future when making an order for joint decision-making authority.
Progressive Legal Solutions can help you with the issues related to decision-making authority and all other issues arising out of your separation.