Arrangements for the children after separation

By Luke's Place | January 4, 2022

Excerpt from the new Luke’s Place toolkit for women: The Law and Parenting Arrangements after Separation

Do I have to go to court?

Often, parents are able to sort out how they make decisions about their children on their own. Such arrangements may be quite informal.

However, when one partner is abusive to another person in the relationship, this may not be possible. If that is your situation, you may need to go to court to get an order setting out how decisions are to be made.

The court can order that one parent have all the decision-making responsibilities or that you and your partner share this responsibility. (In some situations, another person who has played a significant role in your child’s life — for example, a grandparent or other family member — may be given decision-making responsibilities.)

The court will consider what is in the best interests of your child when making an order about how decisions are to be made.

What does “decision-making responsibility” mean?

Decision-making responsibility means the responsibility for making significant decisions about your child in four key areas:

Health
Education
Culture, language, religion, and spirituality, and
Significant extra-curricular activities.

What does “best interests of the child” mean?

Courts are to consider only what is best for children when making any child-related decisions. The best interests of the child test appears in both the Divorce Act and the Children’s Law Reform Act and contains a number of factors that courts must take into account.

For example, a judge may consider:

What support systems you have in place to care for your child (e.g. help from close family members)
Whether your child has strong ties to where you live
Whether they are involved in extracurricular activities
How settled in school they are
How you will encourage and facilitate a relationship between your children and your ex-partner.

We will talk in more detail about the best interests of the child test later in this Toolkit.

Sole vs joint decision-making

Sole decision-making responsibility: If one parent is awarded sole decision-making responsibility, it means that they can make all decisions for the child without the need to consult or come to an agreement with the other parent, with a few exceptions such as moving with the child if that would affect the other parent’s time with the child. (To move, you need the consent of your ex-partner or a court order if your relocation affects your ex-partner’s parenting time with your children.)

If you have sole decision-making responsibility, your ex-partner plays only a minor role in making decisions about your child, including in emergency situations where you are unavailable. They can also make day-to-day decisions during their time with the child.

Joint decision-making: In this arrangement, you and your former partner work together to make major decisions related to your child. It may not be an appropriate arrangement if your partner has been abusive and controlling towards you or if you cannot communicate or problem-solve effectively together.

When there is abuse

If your partner has been abusive to you in your relationship and/or is still being abusive, discuss your concerns with your lawyer.

The abuse may mean that joint decision-making responsibility is not appropriate. Either of these arrangements creates openings for your former partner to continue to control, harass or intimate you.

Your former partner might:

Object to any decision you want to make just to show you that they are still in charge
Refuse to discuss important issues in the child’s life
Bully you into making the decision they want, even if you do not think it is best for the child
Make a decision about one area of your child’s life (e.g. health) that conflicts with a decision you have made about another area of your child’s life (e.g. education)

It is important for you to think about and share your thoughts with your lawyer about: