Understanding Decision-Making Responsibility (Child Custody) Laws

What Parents Need to Know

Expert advice from experienced Toronto Family Law lawyers

At Rashidy & Associates, providing Family Law services in Toronto, we frequently dispute Ontario-based family law matters involving Decision Making Responsibility (DMR). “Decision-Making Responsibility” is a term recently changed from Child Custody due to Bill C-78, which follows a welfare principle, in that it is determined in accordance with a child’s “best interests”. Decision Making Responsibility (DMR) rather than “custody”, is a more descriptive term for the legal concept. When DMR is established, it describes the responsibilities and roles that each parent has in making decisions regarding the children of the marriage.

These decisions are not limited to which parent has the children in their physical custody for the majority of the time, it also includes establishing rules regarding what parent holds the responsibilities of making decisions related to the children’s travel and personal documentation, their primary residence, education, health, welfare, religion, language, etc.

The concept of decision-making responsibility takes the focus off the parent and shifts it to the child. It takes away issues of determination of what parent is more “fit” to have custody of the child and switches the focus to determining what the “best interest of the child” is. This principle is applied under the federal Divorce Act and under Ontario’s provincial legislation, the Children’s Law Reform Act, RSO 1990, c C.12 (s.24).

To determine the “best interest of the child”, legislation and applicable case law are analyzed on a balance in conjunction with the specific context behind the children’s current situation. The legislation states that a court must follow the following factors to determine the “best interest of the child”:

(a)  The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b)  the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c)  each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d)  the history of care of the child;

(e)  the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f)  the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)  any plans for the child’s care

(h)  the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i)  the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j)  any family violence and its impact on, among other things,

(i)  the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii)  the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k)  any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

When there are issues related to family violence, a court will delve deeper into the context of the violence to help them in their determination of the best interest of the child. The factors considered are the following:

(a)  the nature, seriousness and frequency of the family violence and when it occurred;

(b)  whether there is a pattern of coercive and controlling behavior in relation to a family member;

(c)  whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d)  the physical, emotional and psychological harm or risk of harm to the child;

(e)  any compromise to the safety of the child or other family member;

(f)  whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g)  any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h)  any other relevant factor.

After an analysis of the above, the parties themselves may come to an agreement regarding DMR or with the help of a court there may be an order set in place regarding the assignment of responsibilities. A lawyer who specializes in family law-related services in Ontario can assist further in determining what outcome will likely occur in your particular circumstance.

Naturally, DMR can be split jointly between each parent if it is in the best interest of the children to do so. Should this be the case, “Access” or what is now termed as “Parenting Time” is typically also split equally between the parties.

DMR does not affect spousal or child support payments directly, it may affect it indirectly through section 7 expenses. For example, if one parent has sole DMR, that may entail that they do not require consent from the other party to enroll children in extracurricular activities or any activity that requires the payment of a special expense. This may cause a shift in child support payment arrangements.  Instead of DMR, Parenting Time affects child support directly and potentially spousal support indirectly; which is discussed further on our website.

If you have any questions regarding family law, contact one of our lawyers and book a consultation with us here, at our Toronto law firm location.