The school registration deadline is on Friday. One parent wants the Catholic board school near the grandparents, and the other wants the French immersion program the child’s cousins attend. Or a paediatrician recommends a medication for ADHD, and only one parent thinks the child should take it. Neither question is about how many nights the child sleeps at each home, and that is often the first thing people get wrong.
In Ontario, time and authority are separate questions. Parenting time deals with when a child is in a parent’s care. Decision-making responsibility deals with who gets to make significant choices about the child’s life. A parent can have the child most of the week and still have to share or give way on major decisions, and a parent with far fewer overnights can hold real authority over schooling or health care.
This is general information, not legal advice. Your order, your agreement and your child’s particular needs can change the answer. If a child needs urgent medical care, get that care first, and sort out the legal questions afterward.
What the law says about significant decisions
The Divorce Act and Ontario’s Children’s Law Reform Act both define decision-making responsibility as responsibility for making significant decisions about a child’s well-being, including health, education, culture, language, religion and spirituality, and significant extracurricular activities.
Those Acts give courts considerable flexibility. Under section 16.3 of the Divorce Act, decision-making responsibility, or any aspect of it, can be allocated to either spouse, to both, or to some combination of people. That allows for arrangements like these:
- Joint decision-making. Parents must try to agree on all major decisions.
- Sole decision-making. One parent decides, sometimes after consulting the other.
- Divided or “parallel” responsibility. One parent handles education and the other handles health care, for example.
- Joint with a final say. The parents consult, and if they cannot agree by a stated time, one of them decides, perhaps only in a specific area.
Day-to-day matters are different. Unless a court orders otherwise, a parent with parenting time has exclusive authority to make day-to-day decisions during that time, under section 16.2(2) of the Divorce Act and the matching provision of the Children’s Law Reform Act. Bedtime, meals and whether a child with a cold stays home from school on your day are normally yours to decide. A change of school or a course of psychiatric medication is not.
Disputes often arise in the grey area between them. Is a child’s orthodontic treatment significant? Is an elective school program? How about an ear piercing? When parents are likely to fight about something, it is better to name it specifically in a plan.
Before there is an order or agreement
Many parents find themselves in the gap between separation and any formal arrangement. Different rules may apply in this period, and there is one point that many parents do not know about.
Under section 20(1) of the Children’s Law Reform Act, a child’s parents are, as a starting point, equally entitled to decision-making responsibility. Under section 20(3), if more than one person has that entitlement, any one of them may exercise it on behalf of the others. That is why a doctor or school office can usually deal with one parent where there is no order.
But section 20(4) adds a significant qualification. If the parents live apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, then the other parent’s right to exercise decision-making responsibility is suspended until a separation agreement or court order provides otherwise. The parent’s entitlement to parenting time is not suspended.
Think about what that may mean in practice. A parent who moves out and quietly lets the children stay with the other parent for months could find that the other parent has been making major decisions without having to ask. Parents who are divorcing may bring their claims under the Divorce Act instead, and courts will look at a child’s best interests either way. But the lesson is to seek a written arrangement early, rather than assuming that a shared status will simply continue.
Choosing a school
School disputes in Brampton tend to involve a few recurring issues:
- Which board. Peel District School Board and the Dufferin-Peel Catholic District School Board are separate systems, and the Catholic board may have its own eligibility rules, particularly at the elementary level.
- Special programs. French immersion, regional gifted or arts programs, and International Baccalaureate tracks may have deadlines and application steps long before September.
- Attendance boundaries. A child’s designated school depends on their residence, so a move or a change in where the child mainly lives can affect it.
- Private or religious schools. Tuition raises an extra question of who pays, and may be claimed as a section 7 expense in the appropriate circumstances.
- Special education. A child’s supports may involve an Individual Education Plan or a formal identification process, and parents may disagree about whether to agree to an assessment.
Courts asked to choose a school generally look at the child’s needs and the proposed options, rather than the parents’ preferences. Things that often matter include continuity with friends and siblings, the child’s academic and special needs, travel times from each home, each parent’s reason for the preference, and the child’s own views where they are mature enough. A judge is not likely to be impressed by general claims about which school is “better” without any evidence.
Schools are usually trying to stay neutral. They do not decide custody disputes, and they generally follow the most recent order or agreement they have on file. If you have one, provide the school with a copy of the relevant parts. If you are in a dispute, avoid the temptation to enrol your child unilaterally at the last minute. It may create a status quo in the short term, but a court can later see it as a sign that you do not respect the other parent’s role.
Medical care and a child’s own right to consent
Health care raises a surprise for many parents: in Ontario, there is no fixed age of consent to treatment.
Under the Health Care Consent Act, 1996, a person is capable with respect to a treatment if they are able to understand the relevant information and to appreciate the reasonably foreseeable consequences of a decision. That applies to children too. A doctor who believes a 14-year-old understands a treatment may take that young person’s consent, and a parent’s decision would not take its place. Capacity depends on the person and the treatment, so the same child may be capable of deciding about a vaccine, but not about a complex surgery.
If the child is not capable, the Act looks to a substitute decision-maker. The list in section 20 places a parent ahead of a parent who has only a right of access, a phrase that remains in the wording of that Act. In practical terms, it means that your family order or agreement may affect who the clinic can rely on. Ask your doctor’s office to keep a copy on file.
In an emergency, the Act allows treatment without consent where a person is apparently experiencing severe suffering or is at risk of serious bodily harm if not treated promptly, subject to the conditions in the Act. No one should delay going to Brampton Civic Hospital or calling 911 because of a parenting dispute. Inform the other parent as soon as you reasonably can, unless a safety order prevents it.
Some common health disputes include:
Vaccinations. Ontario’s school immunization rules apply to students, and they contain a process for exemptions. Parents who disagree about vaccination have taken those disputes to court, and judges look at the evidence, including the advice of the child’s physician. Strong personal beliefs without supporting evidence do not generally carry the day.
Mental health care and medication. A therapist may need consent from one or both parents, or from the child, depending on the circumstances and on the order. Many therapists will ask for the order before accepting a child as a client. Think about the child’s privacy too. A teenager who is capable may be entitled to keep what is said in counselling confidential, even from a parent.
Elective procedures. Braces, cosmetic work and non-urgent surgery may raise both a decision-making question and a cost question. Get the recommendation in writing and share it.
Choosing the family doctor. Changing doctors without discussion can look like an effort to shut the other parent out, and can also disrupt a child’s continuity of care.
Getting information: a right that is separate from decision-making
A parent who has no decision-making authority does not automatically lose the right to know what is happening. Section 16.4 of the Divorce Act says that unless a court orders otherwise, a person with parenting time or decision-making responsibility is entitled to request information about the child’s well-being, including health and education, from another person with those rights and from anyone else likely to have it. The Children’s Law Reform Act contains a parallel rule.
Note the word “request.” It is not an automatic right to everything, and a professional has privacy and confidentiality duties, particularly with a capable young person. For school records, section 266 of the Education Act gives a pupil, and a parent or guardian where the pupil is a minor, a right to examine the Ontario Student Record.
In practice, you can usually ask the school to add you to its contact list, sign up for its parent portal and get copies of report cards. You can also ask the doctor’s office how it handles information requests. A polite letter with a copy of your order will usually accomplish more than an angry phone call.
A good process avoids most fights
The disputes that reach court often begin with a poor process, not a truly impossible disagreement. If your agreement or order calls for joint decision-making, it should also tell you how to reach a decision. Useful terms include:
- how a parent will raise an issue (for example, by email or through a co-parenting app)
- how long the other parent has to respond, with a shorter time for urgent matters
- what happens if there is no response
- who will gather information or speak to the professional
- whether a neutral recommendation, such as the paediatrician’s, will generally be followed
- what happens if there is still a disagreement, such as mediation, followed by a final say or a court motion
- how a child’s views will be included without pressuring them
A hypothetical example: a parent emails on March 1 asking to enrol a child in Grade 4 French immersion, including the school’s information sheet. The other parent has 10 days to reply. If they disagree, the parents will talk with a mediator within 14 days. If there is still no agreement by the school’s deadline, the parent responsible for education decides. It is not exciting drafting, but it may save a motion.
When you need a judge
If you truly cannot agree, a court can decide the specific issue or reallocate decision-making in general. Depending on the case, this may go to the Superior Court of Justice or the Ontario Court of Justice, both located at 7755 Hurontario Street. The only question is the child’s best interests, with primary consideration given to the child’s physical, emotional and psychological safety, security and well-being.
Evidence should concern the child. Helpful material might include a letter from a doctor, assessment reports, school information sheets and a clear record of your efforts to consult the other parent. Courts are often reluctant to order joint decision-making where parents have shown they cannot communicate, and they often look at which parent has been reasonable. A record of calm, child-focused emails counts for a lot. If a decision is urgent, such as a treatment that cannot wait, say so clearly and ask for advice about moving more quickly.
Mediation is often worth trying first, unless safety or a power imbalance makes it unsuitable. Our page on custody and parenting matters has more on how these issues are addressed, and if a school deadline or medical decision is approaching, you can contact our office to talk through the options while there is still time to use them.