Decision-Making and Parenting Time After Separation or Divorce
When parents separate or divorce, the emotional upheaval can be substantial. One of the most challenging aspects to navigate is the determination of decision-making responsibilities and parenting time. This blog post aims to shed light on this complex issue, providing guidance and insights to help parents make the best decisions for their children.
Mutual Agreement Between Parents
In an ideal world, parents would be able to reach a consensus on decision-making and parenting time. These terms can be included in a separation agreement, or parents can create a separate agreement dedicated to these issues.
Regardless of the chosen route, it's advisable to have the agreement written and signed in front of a witness by both parents. Ideally, the agreement should be drafted by a lawyer to ensure all legal aspects are correctly addressed. However, if parents choose to write it themselves, they should have their respective lawyers review it before they sign it.
While an informal or verbal understanding can be easier and quicker to establish, a written agreement is safer and provides a reference point should disagreements arise in the future.
When Parents Cannot Agree
In situations where agreement is not possible, there are several options to explore:
Mediation: A trained mediator can help parents talk through their disagreements and find solutions that are acceptable to both parties. Once an agreement is reached in mediation, it's crucial for parents to have their lawyers review the agreement before signing it. Mediation can be a helpful tool, but it may not be suitable in all situations—for instance, if there's a history of abuse or intimidation.
Court: When an agreement cannot be reached, parents can opt to go to court and have a judge make the decision. Court processes can be complex and challenging to navigate, so it's usually best to engage the services of a lawyer.
Arbitration: Arbitration serves as another alternative for resolving disagreements and is often less formal than court proceedings. Both parents must agree to arbitration, which comes with its own set of rules. Notably, an arbitrator has the power to make legally binding decisions.
In Ontario, for family law arbitration to be legally binding, it's vital that each parent consults with a lawyer before agreeing to arbitration. The arbitrator's decision must be based solely on Canadian family law, meaning they must apply the same principles that a judge would apply in a Canadian court. Their decision must always prioritize the best interests of the child.
Involvement of External Parties
In some cases, external parties can provide necessary assistance and guidance:
The Office of the Children’s Lawyer (OCL): The court may involve the OCL in cases involving child custody and access arrangements. The OCL can provide independent information about the child’s needs and wishes, ensuring the child's best interests are represented.
Parent Coordinators: Parenting coordinators can assist separated parents in resolving day-to-day parenting issues. These professionals, often social workers or psychologists, take a child-centered approach to disagreements over parenting issues, providing possible resolutions and arbitrating a decision when parents cannot agree.
Changing Court Orders Regarding Parenting
Parenting plans may need to be modified over time. If decision-making and parenting time arrangements are outlined in a court order, or if both parents do not agree to a proposed change in an agreement, only the court can make the change. Unless both parents agree, a judge will change an existing order only if there has been a significant change in the child’s needs or circumstances or in a parent’s ability to meet the child’s needs.
Co-Parenting Tips
Successfully navigating co-parenting arrangements can be a significant challenge, particularly when there's conflict between parents. Here are some tips for fostering a healthy co-parenting relationship:
Do use your best efforts to work cooperatively and to make parenting arrangements with your children’s best interests at heart. Do encourage your children to enjoy a strong and nurturing relationship with your former spouse. Do make every effort to keep your children out of your dispute with your former spouse.
Don’t denigrate, criticize or disparage your former spouse, or members of their extended family, in any communication with the children. Don’t speak to your children about specific parental differences and disagreements. Don’t communicate about issues in front of the children.
Understanding these principles can make a significant difference in how smoothly the process goes for both parents and children involved. The child's best interests should always be the guiding principle in any decision-making process. By keeping these principles in mind, parents can navigate the complexities of decision-making and parenting time, ensuring their decisions serve the best interests of their children.
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