Factors that Impact Decision-Making Responsibility/Parenting Time of Children

Decisions regarding decision-making responsibility and parenting time are made with a view only to the best interests of the child. Both the Children’s Law Reform Act and the Divorce Act set out an enumerated list of factors that are to be considered when making decisions regarding decision-making responsibility and parenting time.

If you and your partner were either never married or were married but have decided to separate rather than divorce, the Children’s Law Reform Act will govern your matter and parenting will be expressed in terms of decision-making responsibility and parenting time.

Section 24(3) of the Children’s Law Reform Act sets out a number of factors to consider when making decisions regarding decision-making responsibility and parenting time including;

• The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• 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;
• Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• The history of care of the child;
• The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• Any plans for the child’s care;
• 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;
• 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;
• Any family violence and its impact on,
  • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and 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 chid; and any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

If you and your partner were already married and have either divorced or are pursuing a divorce, the Divorce Act will govern your matter and parenting will be expressed in terms of decision-making responsibility and parenting time. 

Section 16(3) of the Divorce Act now also includes a list of factors the court will consider in making decisions regarding decision-making responsibility and parenting time including;

• The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• The history of the care of the child;
• The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• Any plans for the child’s care;
• 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;
• 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 child;
• Any family violence and its impact on, among other things,
  • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
• The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child

A parent’s past conduct is not relevant in a determination of decision-making responsibility/parenting time unless that past conduct is relevant to their ability to act as a parent or to exercise their parenting time or decision-making responsibility.

However, there is an exception to this general rule that past conduct will not be considered: family violence or abuse. Under both the Children’s Law Reform Act and the Divorce Act, any history of family violence or abuse will be considered in making a decision regarding decision-making responsibility and parenting time.

Simply having an affair will not, alone, be grounds for an individual to lose decision-making responsibility and parenting time. However, there may be other factors that are related to this affair that may impact the individual’s ability to act as a parent, that may impact a decision-making responsibility or parenting order.

While courts may place more emphasis on certain factors rather than others, what is important to remember is that courts will always have a view towards the best interests of the children involved.