In joint parenting arrangements in which former spouses share decision-making ability regarding their children, communication is essential to enable both parents to share input when reaching important decisions. Conflict can arise when one party acts unilaterally to make a decision about a child’s welfare without consulting the other parent. This exclusion restricts cooperation and interferes with the child-centric shared responsibility that courts expect.

Court Reminds Parties that “Self-help” Remedies are Misguided

In Moussaoui v. Harkouken, the separated parents had successfully crafted parenting arrangements that appeared to be working for them and their five-year-old son. The child alternated between the two residences every Monday with the parents agreeing to change the location and time of exchanges multiple times since their separation. The parents also jointly agreed on their son’s daycare, enabling both to continue their careers. There were communication challenges and the pair conversed mainly through text messages. Nevertheless, the parents had initiated discussions on selecting a choice of school for their son and only found themselves in court when the mother registered the child in school without notice to the father. Subsequently, both parents sought a temporary order placing their child in different schools.

The parents had initially agreed that their son should attend kindergarten. The father asked the mother where she was going to register their son. She suggested a school (MPE) that was near their daycare program. The father acknowledged it was a good choice as their son’s friends from daycare would be attending, however, he proposed a different school (RH) instead. The mother replied that she would look at the school. While they discussed the issue, the father decided to register the child at RH to ensure they could secure a placement.

Unbeknownst to the father, the mother was looking for new accommodations. On August 13, 2020, she registered their child to attend MPE. On August 15^th she purchased a condominium and on August 24^th, without notice and without the father’s consent, proceeded to register the child in the online kindergarten program at a third school, KE, cancelling the registration at MPE. Upon learning of the mother’s decision, the father indicated he was not in agreement with her unilateral actions and indicated he was interested in reaching an agreement but received no response.

Unilateral Decision-Making Not Compatible with Co-Parenting

The judge noted that the parents had been making important decisions about their son jointly. However, the mother had a history of acting unilaterally regarding their child’s schooling. Neither party had the right to make unilateral decisions regarding the best interests of their child. The mother initially followed their agreement by registering their son at MPE but unilaterally switched to KE. Justice Shelston wrote that “the court does not condone self-help remedy by parties. Acting unilaterally and then requesting that the court confirm such unilateral action is misguided.” Instead, the proper course of action was to commence an application to address the issue of the child’s school.

Joint decision-making responsibility requires that parents cooperate in making key decisions about their children. The unilateral actions by one parent can constitute a repudiation of this shared responsibility. In Garell v. Habib (unreported but cited in MacKeigan v. Reddick), Justice Murray delved into the meaning of what was formerly termed joint custody, finding that “unilateral decision-making by one party without consultation or rational discussion with the other party is not within the reasonable contemplation of a judge who orders joint custody”.

The threshold for joint decision-making is not met by one party informing the other about important decisions regarding the children. It requires that information be shared, and that discussion and consultation occur before a decision is made. Parents who undertake to jointly parent with shared authority to make decisions, implicitly make a commitment to cooperate in settling important choices about their children. 

Joint Decision-Making Responsibility Requires Trust and Respect Between Parents

When joint decision-making begins to break down, courts remind parents that being entrusted with the authority to make decisions for children is not a reward but rather a responsibility. Parties must have ongoing mutual respect in the other parent and trust that each will make child-focused choices. In the 2005 decision Kaplanis v. Kaplanis, the Ontario Court of Appeal laid out the principles that determine whether an order for joint decision-making responsibility is appropriate. The Court commented that:

• There must be evidence of historical communication between the parents and appropriate communication between them.
• It can’t be ordered in the hope that it will improve their communication.
• Just because both parents are fit does not mean that joint custody should be ordered.
• The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
• No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
• The younger the child, the more important communication is.

The focus on communication skills between parents is in recognition of how important it is for joint decision-making responsibility to work effectively. Communication between separated parties will not always be easy or free of conflict and courts recognize this. What is required, according to the court in Warcop v. Warcop, is a reasonable measure of communication and cooperation that can be maintained into the future so that the best interests of the child can be ensured on an ongoing basis.

Failure to Communicate and Involve Both Parents in Decision-Making Fuels Conflict

Unilateral actions by a parent are inconsistent with expectations that parties will respect one another by sharing information so that each parent can remain an active influence in the development of their children. Courts view unilateral actions as adversarial and this exacerbates winner/loser results and raises conflict within families. This must be discouraged. Instead, the best interests of children are served with parenting plans and communications that work beyond past difficulties to flexibly address the real needs of families.

The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters. We are experienced in helping clients develop parenting plans and navigate parenting matters post-separation or divorce. Our lawyers can help you with solutions tailored to your unique circumstances. To arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.