Who Decides on School, Medical Care and Religion After Separation?
When parents separate, a lot of attention naturally goes to the parenting schedule.
Where will the child sleep? How will weekends work? What happens during school holidays?
But another question is just as important:
Who will make the significant decisions about the child's life?
In Ontario, this is called decision-making responsibility.
It can include decisions about a child's education, healthcare, culture, language, religion or spirituality, and significant extracurricular activities. Parenting time and decision-making responsibility are separate parts of a parenting arrangement.
That means the parent who has more parenting time does not automatically make every important decision.
The answer depends on how decision-making responsibility has been allocated in the parents' agreement or court order and, where there is no agreement or order, on the legal framework that applies to the family.
What Is Decision-Making Responsibility?
Under the federal Divorce Act, decision-making responsibility means responsibility for making significant decisions about a child's well-being.
The legislation specifically identifies decisions involving:
health;
education;
culture and language;
religion and spirituality; and
significant extracurricular activities.
Ontario's Children's Law Reform Act also allows a court to allocate decision-making responsibility—or particular aspects of it—to one or more people.
The important word is significant.
Decision-making responsibility is not intended to turn every ordinary parenting choice into a joint legal decision.
Who Decides Which School a Child Attends?
Choosing or changing a child's school will generally fall within education decision-making responsibility.
Who has authority to make that decision depends on the parenting arrangement.
For example:
both parents may share responsibility for education decisions;
one parent may have sole responsibility for education; or
education may be allocated to one parent while another parent has responsibility for a different area, such as healthcare.
Parents can make significant decisions jointly, allocate all of them to one parent, or divide responsibility by subject.
If both parents share education decision-making responsibility, the parenting agreement should ideally explain how those decisions are made when the parents do not initially agree.
That becomes particularly important when the issue involves changing schools, selecting a specialized program or making a decision that would significantly affect the child's routine.
Who Makes Medical Decisions After Separation?
Significant healthcare decisions also fall within decision-making responsibility.
That may include decisions about matters such as:
major medical treatment;
surgery;
ongoing specialist care;
significant mental-health treatment; or
other important healthcare decisions.
Who has authority depends on how healthcare decision-making responsibility has been allocated.
But not every health-related choice requires both parents to consult.
A parent exercising parenting time generally has authority to make day-to-day decisions during that time unless an agreement or court order provides otherwise. Under both the Divorce Act and Ontario legislation, the person with parenting time ordinarily has exclusive authority over those day-to-day decisions.
Significant health decisions are distinguished from ordinary or emergency decisions that may have to be made by the parent who is caring for the child at the time.
A parenting agreement can make that distinction clearer.
Who Decides a Child's Religion or Spiritual Upbringing?
Religion and spirituality are specifically included within the definition of decision-making responsibility under the Divorce Act.
Again, the answer depends on who has been given responsibility for that particular area.
Parents may agree to make religious decisions jointly.
They may allocate that responsibility to one parent.
Or their parenting plan may contain more specific provisions dealing with attendance at religious services, religious education, ceremonies or cultural traditions.
This is an area where specificity can be particularly useful.
A clause stating only that parents “share decision-making responsibility” may not answer what happens if the parents later disagree about religious schooling, participation in ceremonies or a significant change in the child's religious upbringing.
What Is the Difference Between Major Decisions and Day-to-Day Decisions?
This distinction is central to a workable parenting plan.
Significant decisions generally concern areas such as health, education, culture, language, religion and significant extracurricular commitments.
Day-to-day decisions are the ordinary choices involved in caring for the child during parenting time.
Justice Canada's parenting guidance gives examples such as:
homework;
bedtime routines; and
chores.
Other everyday choices may include meals, routine activities and ordinary social plans.
Unless the agreement or court order says otherwise, the parent exercising parenting time generally makes those day-to-day decisions during their time with the child.
That means shared decision-making responsibility does not necessarily give one parent the right to control the ordinary routine inside the other parent's home.
Can Parents Share Decision-Making Responsibility?
Yes.
Under a shared or joint decision-making arrangement, both parents participate in significant decisions.
This may work well where the parents can exchange information, discuss important issues and reach decisions in a way that keeps the child's interests at the centre.
But shared decision-making is not appropriate simply because it appears equal on paper.
Parents should consider whether they can cooperate effectively and whether there is family violence or a significant power imbalance.
Where the parents cannot safely or realistically make decisions together, another structure may better serve the child.
Can Decision-Making Be Divided by Subject?
Yes.
This is sometimes called divided or parallel decision-making responsibility.
One parent might have responsibility for education while the other has responsibility for healthcare.
Or one parent may have authority over a specific issue while other major decisions continue to be shared.
For some families, dividing responsibility can reduce recurring conflict.
But it is not automatically a solution.
Education and healthcare, for example, can overlap. A demanding school program might affect a child's mental or physical health.
A parenting plan that divides responsibility should therefore also consider what happens when two categories overlap.
Can One Parent Have Sole Decision-Making Responsibility?
Yes.
Decision-making responsibility, or a particular part of it, can be allocated to one parent.
That may be appropriate depending on the child's best interests and the circumstances of the family.
For example, concerns about family violence, an inability to communicate safely or a significant power imbalance may be relevant when deciding whether requiring joint decisions is appropriate.
A parent with sole decision-making responsibility does not automatically have a general legal obligation to consult the other parent before every decision.
An agreement or court order may require consultation or notice.
For example, it might say that one parent has final authority over education after first seeking the other parent's views.
But if that is what the parents intend, it should be stated clearly.
What Happens If Parents Share Decision-Making and Cannot Agree?
This is one of the most important things to address when drafting a parenting plan.
A shared-decision arrangement that says only:
“The parents will jointly make all major decisions.”
Does not explain what happens when they reach an impasse.
It is important to consider how future disputes will be resolved and gives family dispute resolution, including mediation, as one possible approach.
Depending on the family, an agreement might provide that:
the parents first exchange information and attempt to resolve the issue directly;
they attend mediation if they cannot agree;
a parenting coordinator is used where appropriate;
a family arbitrator determines specified disputes where the legal requirements for arbitration are satisfied; or
one parent has defined final decision-making authority for a particular subject after consultation.
There is no single clause that works for every family.
The dispute-resolution process should fit the level of conflict, the nature of the decisions and any safety concerns.
Should a Doctor or School Principal Be the Tie-Breaker?
This needs more caution than the original version suggests.
A doctor, therapist, teacher or school principal may provide valuable professional information.
For example, a pediatrician may explain the medical options, or a school professional may provide information about the child's educational needs.
But providing professional advice is different from being given legal authority to resolve a parenting dispute.
A parenting agreement should not casually state that a doctor, principal or other professional will make the final family-law decision without considering:
whether that professional has agreed to take on the role;
whether the decision falls within their professional expertise;
what happens if the professional refuses;
how conflicting professional opinions will be handled; and
whether the arrangement is legally appropriate.
Often, professional recommendations are better used as information that helps the parents or a proper dispute-resolution decision-maker reach a decision, rather than turning the professional into the family's arbitrator.
Is Mediation Always Required When Parents Disagree?
No.
Under the Divorce Act, parties have a duty to try to resolve disputes through a family dispute resolution process where it is appropriate to do so.
Mediation can be useful because a neutral person helps the parents try to reach their own agreement.
But the mediator does not make the decision for them.
And mediation is not appropriate in every case.
Family violence, safety concerns or a significant power imbalance may mean another process is required.
A parenting agreement should therefore avoid creating a mandatory dispute-resolution process that could later place someone in an unsafe situation.
Does a Parent Without Decision-Making Responsibility Still Have a Right to Information?
Often, yes.
This is an important distinction between making a decision and having information about the child.
Under the Divorce Act, unless a court orders otherwise, a person who has parenting time or decision-making responsibility is entitled to request and receive information about the child's well-being, including information relating to health and education, subject to applicable laws.
Ontario's Children's Law Reform Act contains a similar information right for a person who has been granted parenting time or decision-making responsibility under a parenting order.
That means a parent may have a right to information even if they are not the person making the final decision about that subject.
For example, a parent may still be entitled to request school or medical information even where the other parent has final responsibility for education or healthcare.
Should Information Sharing Be Written Into the Parenting Plan?
It can be very useful.
Even where the legislation creates information rights, practical problems can arise if a school, doctor or activity provider has only one parent's contact information.
A parenting plan can address issues such as:
both parents being listed with the school where appropriate;
access to school portals and report cards;
sharing notice of medical appointments;
providing information about significant diagnoses or treatment;
keeping emergency contact details current; and
providing copies of important documents.
Clear procedures can reduce disagreements over whether information was withheld or simply never reached the other parent.
The agreement should still respect privacy laws, safety concerns and any limitations contained in a court order.
What If Parents Disagree About School?
School disputes can involve much more than personal preference.
Issues may include:
the child's existing school and stability;
distance from each parent's home;
transportation;
special education needs;
language or cultural considerations;
the child's relationships and activities;
proposed relocation; and
the child's overall needs.
If a court ultimately has to decide, the governing consideration is the best interests of the child, not which parent's preferred school appears more prestigious or convenient.
Justice Canada's guidance specifically reminds parents that when choosing a school, the decision should be made based on what will most benefit the child.
What If Parents Disagree About Medical Treatment?
Medical disagreements can become particularly urgent.
Where the parents share healthcare decision-making responsibility, their agreement should ideally provide a process for resolving significant disagreements.
But emergencies are different from ordinary planning.
Emergency decisions are generally made by the parent who is caring for the child when the emergency occurs.
A parenting plan can also require the parent dealing with an emergency to notify the other parent as soon as reasonably possible.
For ongoing or non-emergency treatment, the allocation of healthcare decision-making responsibility will generally govern.
What Should a Good Decision-Making Clause Actually Say?
A useful clause should do more than choose between “joint” and “sole.”
Depending on the family, it may address:
which decisions are shared;
whether particular subjects are allocated to one parent;
what consultation means;
how quickly parents should respond to a proposed decision;
what information must be exchanged;
what happens in an emergency;
how professional recommendations will be obtained;
what happens when categories overlap; and
what process applies if the parents cannot agree.
The goal is not to predict every disagreement the parents will ever have.
It is to make sure the parenting plan provides a workable process when an important disagreement eventually happens.
What Should Parents Ask Before Choosing a Decision-Making Structure?
Start with how decisions are actually made now.
Who communicates with the school?
Who attends medical appointments?
Can the parents exchange information without the conversation escalating?
Are there safety or power-imbalance concerns?
Can they make a significant decision together even when they initially disagree?
Then ask the question the original draft was right to raise:
What happens when we cannot agree?
If the agreement answers that clearly and safely, the decision-making structure is much more likely to function in practice.
Frequently Asked Questions
Who decides which school a child attends after separation?
The person or people with decision-making responsibility for education generally make significant school decisions. The specific parenting agreement or court order should be reviewed to determine how education decisions have been allocated.
Who decides whether a child receives medical treatment?
Significant healthcare decisions are generally made by whoever has healthcare decision-making responsibility. Ordinary day-to-day and emergency decisions may be handled by the parent caring for the child at the time, subject to the agreement or order.
Can one parent make school decisions while the other makes medical decisions?
Yes. Decision-making responsibility can be divided by subject. Justice Canada's guidance refers to this as divided or parallel decision-making.
Does shared decision-making mean both parents must agree about everything?
No. Shared decision-making concerns significant decisions, not every ordinary parenting choice. The agreement should also explain how significant disagreements will be handled.
Can one parent have final say after consulting the other parent?
Potentially. A parenting agreement or court order can be structured so that one parent has final authority over a particular area after consultation. The wording should clearly define the scope of that authority.
Does a parent without decision-making responsibility still get school and medical information?
Often, yes. Unless a court orders otherwise, parenting time or decision-making responsibility can carry a right to request and receive information about the child's health and education, subject to applicable law.
Can a mediator decide which school the child attends?
No. A mediator helps parents try to reach their own agreement but does not impose the decision. Other dispute-resolution processes, such as arbitration where legally appropriate, operate differently.
Start With a Parenting Arrangement That Answers the Important Questions
A parenting schedule tells you when a child is in each parent's care.
Decision-making responsibility tells you who decides the significant questions that arise while the child grows up.
Both deserve careful thought.
If you are separating and trying to organize parenting, financial and practical issues, Willing Law's Separation Checklist can help you identify the questions that should be addressed before important details are overlooked.
Download the Separation Checklist and use it as a starting point for the decisions ahead.
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This article provides general legal information only and is not legal advice. Reading it does not create a solicitor-client relationship.
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