By: Josh Young
In family law, the courts frequently face the challenge of determining whether to grant sole decision-making authority (formerly known as custody) of the child(ren) to one parent over the other. Sole decision-making authority grants a parent the authority to make significant decisions in the children’s lives without consent from the other parent.
Making an order for sole decision-making is a rarity for the courts as their focus is on what is in the best interest of the child(ren). In the court’s view, maximum contact with both parents while allowing both parents to make decisions jointly is the ideal standard. However, this is not always possible and, under certain circumstances, the court must interject to create interim (temporary) orders regarding sole decision-making authority for one parent.
The Best Interest of the Child
The child’s best interest is the cornerstone of any decision involving sole decision-making authority. This principle is at the core of family law. According to Section 16(3) of the Divorce Act or Section 24(3) of the Children’s Law Reform Act, the court must consider all factors related to the child’s living circumstances. These factors include the child’s needs, the strength of their relationship with each parent, each parent’s willingness to support the child’s relationship with the other parent, the child’s views and preferences, and whether there is any history of family violence. Section 24 of the Children’s Law Reform Act states:
Factors
(3) Factors related to the circumstances of a child include,
- (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 co-operate, 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 looking at the best interests of the children, a considerable number of factors are to be reviewed to gain to achieve a holistic analysis.
Impact of Interim Decisions on Future Proceedings
The primary issue that courts find with interim decisions in family matters is that the court’s are cognizant that any decision-making authority they grant to one parent may set a precedent for what will become the long-term status quo (i.e. the long-term arrangement). This flows into the status quo principle – changing the child(ren)’s lifestyle will be more challenging in the long-term if the courts adjust the child(ren)’s lifestyle in the short-term. This precedent can influence the final decision-making authority and parenting time arrangements.
Conclusion
The courts’ goal is to balance the child(ren)’s immediate needs with the long-term implications of their interim decisions. By focusing on the child(ren)’s best interests, maintaining the status quo, and adhering to the maximum contact principle, courts aim to provide stability and support for children during challenging transitions.
If you happen to be going through a family separation and are in need of support, come speak to one of our experienced family law lawyers at HGR Graham Partners.