Separation does not always mean individuals get to make their own decisions. When it comes to deciding what is best for the child(ren) a couple share, there can be many challenges including who gets the final say.
In a recent decision released by the Superior Court of Justice for Ontario, Justice Pazaratz addressed the issue of shared decision-making arrangements and whether they work for every family going through a separation. Not surprisingly, the answer is “it depends”.
At the start of his reasons in Rogers v Porga,[1] his Honour posed the following question:
“As the pendulum seemingly swings toward a presumption of shared parenting, are we losing sight of the potential harm we can cause to children – and entire families – by ordering what amounts to a feel-good label in situations where, in reality, it is doomed to failure?”
In the Rogers case, the Mother brought an urgent motion to permit the parties’ six-year-old child to attend a different school for his grade one school year, commencing in September 2021. The parties’ child had speech and probably hearing issues, and was in need of professional help for both. In May 2021, the child’s school board speech pathologist recommended that the child attend grade one at a different school for a free, school-based rehabilitation speech therapy service. The child met the criteria and was accepted into the program. The child would return to the former school for the grade two year.
In November 2019, the parties consented to an order with equal decision-making authority without either one of them having a “tie-breaking vote”.[2] The Mother and the child’s school contacted the Father and requested his consent. The Father denied his consent and eventually stopped communicating with the Mother and school on the topic altogether. During the motion, the Father argued (amongst other things) that the disruption for the child would outweigh any benefit to the child.
The Court ruled in favour of the Mother and decided that it was in the best interest of the child if the child attended the school-based rehabilitation service at the other school for his grade one year. In making that decision, some of the Court’s considerations included:
- The Father did not provide any evidence that the school-based rehabilitation service was “not a good plan, or that there’s a better option”.[3]
- The Father did not provide any evidence that the school-based rehabilitation service “would interfere with or be inconsistent with any professional response to any hearing issues” (the Father contested the Mother’s claim that the child’s main issue was a speech issue).[4]
Justice Pazaratz noted that with joint-decision making responsibility, parents are allowed to disagree and that “children are often better served if parents thoroughly and even vigorously explore all options” through constructive discussion.[5] That said, his Honour reminded the parties that in the wrong circumstance, joint decision-making responsibility can “perpetuate hostilities, indecision, and power struggles”.[6]
The message? It’s okay for parents to disagree with each other when making decisions regarding their children, and parents may not “get it right” on their first try. Co-parenting in the midst of a separation is difficult and it is expected that sometimes parents will struggle to come to a consensus.
That said, the Court encourages parents to work together to participate meaningfully in their children’s upbringing. Children may likely benefit from having guidance and input from both parents. If Parent A disagrees with Parent B’s point of view, Parent B should at the very least present evidence as to why Parent A’s point of view is not the best option, and research alternatives in order to foster a productive conversation.
However, parents should also look past the favourable and “feel-good optic” of having a shared decision-making arrangement if the reality is that they cannot work together to make decisions in the best interests of their child.
[1] 2021 ONSC 4759 (“Rogers”).
[2] Rogers at para. 9.
[3] Rogers at para. 31(g).
[4] Rogers at para. 31(h).
[5] Rogers at para. 33(c).
[6] Rogers at para. 38, citing Izyuk v Bilousov, 2011 ONSC 6451 at para. 504.
