Q: My ex and I can’t agree on anything. We constantly argue about our child’s school and medical appointments. The disagreements are becoming expensive. I’ve been told that joint decision-making responsibility is best for children after separation, but I don’t feel that arrangement is working anymore. What happens when parents with joint decision-making responsibility simply can’t communicate any longer?
A: While it is generally beneficial for a child to have both parents actively involved in their life, this does not necessarily mean that parents should share decision-making responsibility for all major decisions concerning the child.
Decision-making responsibility refers to responsibility for making significant decisions about a child’s well-being, including decisions about health, education, religion and other important matters in respect of the child. A separation agreement or court order can give decision-making responsibility to one parent or the other, or both (joint decision-making).
Parenting time refers to the time a parent spends with the child and the responsibilities associated with that time. A parent can have significant parenting time without having decision-making responsibility over every major issue.
This distinction is important when parents are in conflict.
Joint decision-making can work well when parents are able to communicate and co-operate. They do not have to like one another, and they certainly do not need to communicate constantly. However, they need to be able to exchange important information, consider each other’s views and make timely decisions about their child.
Even a carefully drafted parenting order cannot anticipate every situation that may arise as a child grows and their needs change. A child may suddenly require medical treatment, a school may recommend an assessment, or a new extracurricular activity may come up. These situations can involve unexpected expenses that require the parents to make decisions quickly.
If parents cannot communicate about these issues, requiring them to make every significant decision jointly can create ongoing conflict and ultimately be inconsistent with the child’s best interests. Poor communication can also have financial consequences, particularly when disagreements over significant expenses lead to increased legal fees and prolonged disputes.
When joint decision-making is no longer workable, parents may consider other arrangements, including secondary arbitration, divided or split decision-making responsibility, or, in appropriate circumstances, sole decision-making responsibility.
One option is secondary arbitration, where the parents agree in advance that a neutral third party can resolve certain future disputes, rather than having to return to court each time they cannot agree. This can be useful for significant disagreements, but it is generally not a practical or affordable solution for every parenting decision.
Another option is divided or split decision-making responsibility, meaning each parent has final authority over specific areas. For example, one parent may be responsible for education while the other is responsible for health decisions. This can provide clearer boundaries where joint decision-making is simply not working and can be set out in a separation agreement or court order.
In some cases, however, where parents are unable to communicate effectively, sole decision-making responsibility may be the more appropriate arrangement. In Newman v. Nicholson, a 2016 decision of the Ontario Superior Court of Justice, the court changed an existing joint decision-making responsibility to one in which the mother had sole decision-making responsibility.
The court found that the parents’ communication was abrasive and that there was little meaningful exchange of information about their child. The father had ignored emails from the mother concerning the child, was slow to respond, and had not demonstrated a willingness to work with her to make important decisions together. The court concluded that the parents did not have the minimum ability to communicate necessary for joint decision-making to be in the child’s best interests.
Not every high-conflict family requires sole decision-making responsibility. The law requires an individualized assessment of the child’s best interests. In some families, parents can successfully share decision-making despite significant disagreements. In others, allocating decision-making responsibility to one parent may provide the clarity and stability a child needs.
If you are considering joint decision-making responsibility, an important question to ask is whether you and your former partner are able to communicate effectively and make important decisions together.
If the answer is no, an arrangement that gives one parent sole decision-making responsibility may, in some circumstances, better serve the child’s best interests than requiring parents who cannot communicate effectively to jointly make major decisions. If your existing parenting arrangement is no longer workable, it may be appropriate to speak with a family lawyer about whether the arrangement should be changed.
