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Decision Making

Decision Making

Arguably, the most stressful aspect of separation, where children are involved, is what will happen to the children?

Decision making, previously known as “Custody”, refers to the authority to make decisions concerning your children’s upbringing, including: education, religion, health, mobility and cultural upbringing. Decision making does not refer to time spent with the children; this is a separate issue known as “parenting time”, or previously known as “access”. 

Generally, there are two types of decision making authorities, sole decision making and joint decision making. 

Sole decision making is where one parent has the right to make major decisions concerning the children to the exclusion of the other parent. Joint decision making is where parents both have the right to participate in making major decisions for their children’s wellbeing and upbringing. 

Courts consider it important for both parents to participate in a discussion about what is in the best interests of their children, which is why there is usually a strong presumption in favour of joint decision making. Therefore, unless one parent can establish that it is not in the children’s best interests, in their specific family, for the other parent to be involved in the decision making process, it is difficult for sole decision making to be awarded. For instance, mental incapacity, addiction, abuse, and/or high conflict. 

There are some cases where a more nuanced decision making regime has been awarded known as “parallel parenting”, which is where one parent has the decision making authority over one specific set of issues and the other over other issues. This is usually granted in situations where both parents are capable of making decisions in the best interests of their children, but are completely unable to communicate with each other. 

Children are first. The overarching test is that of the best interests of the children. The Children’s Law Reform Act provides that when determining what is in the best interests of the children, the Court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being by considering the following factors:

  1. the children’s needs, given the children’s age and stage of development, such as the children’s need for stability;
  2. the nature and strength of the children’s relationship with each parent, each of the children’s siblings and grandparents and any other person who plays an important role in the children’s lives;
  3. each parent’s willingness to support the development and maintenance of the children’s relationship with the other parent;
  4. the history of care of each child;
  5. the child’s views and preferences, giving due weight to the children’s age and maturity, unless they cannot be ascertained;
  6. the children’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. any plans for the children’s care;
  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the children;
  9. 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 children;
  10. any family violence and its impact on, among other things,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the children, and
    2. 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 children; and
  11. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the children.

At Noori law, children are at the heart of why we practice family law. Contact us now!

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