By Rebecca Winninger, Senior Associate Lawyer,
Lam Family Law*

The Divorce Act and Children’s Law Reform Act were both amended in 2021 to include a provision which states that, unless the court orders otherwise, each parent has “exclusive authority” during their parenting time to make “day-to-day decisions affecting the child”: Divorce Act, RSC 1985, c 3 (2nd Supp), s 16.2(2) & Children’s Law Reform Act, RSO 1990, c C.12, s. 28(6).

Shortly after the provision was enacted, Justice Chappel wrote that it was “an important development in the law, as it clarifies that a party who has not been granted decision-making responsibility for ‘significant decisions about a child’s well-being’…nonetheless plays an important role in the child’s life and retains a decision-making role in regard to daily issues that can be equally important to the child’s overall well-being.” The section also “protects children and parents who have parenting time with each other from attempts by the party who has been granted decision-making authority respecting significant decisions to intrude upon or marginalize the role of the other parent”: McBennett v Danis, 2021 ONSC 3610 (CanLII), at para 80 [underlining added].

As for the scope of what constitutes a “day-to-day” decision, Justice Mandhane opined that this includes “feeding, clothing, bathing, soothing, and providing basic non-emergency medical care to the child”: E.M.B. v. M.F.B., 2021 ONSC 4264 (CanLII), at para 148. In one B.C. case, the court described day-to-day decision-making as “e.g. what the child eats, play time, bed time”: C.L.D. v J.J.P.D, 2024 BCSC 1123 (CanLII), at para 217.

In “The Divorce Act Changes Explained”, the Department of Justice wrote that day-to-day decisions include “bedtimes and what the child should eat”. Given the nature of these decisions, “a person with parenting time should normally be able to make these decisions during their parenting time without the need to consult any other person with decision-making responsibility in relation to the child.”

Given the wording of the new provisions, the court clearly retains the authority to allocate day-to-day decision-making in another manner if it sees fit. The court can “make specific orders about day-to-day decisions generally, or about certain day-to-day decisions, if it finds that this would be in the best interests of the child”: The Divorce Act Changes Explained.

However, in the reported cases to date, courts have largely relied on the provision as Justice Chappel anticipated – to prevent a more zealous parent from imposing their parenting practices on the other parent. In L.M. v. K.P. (2024), Justice Bale noted that the right to make day-to-day decisions while the child is in each parent’s care is presumptive, and declined to impose the restrictive qualifications the mother sought regarding day-to-day care. The father did not require that level of oversight and control. It was clear that the parties had many differences of opinion regarding appropriate use of curse words, social media, and humour. The father’s household appeared to be loud and boisterous, while the mother’s was more structured and reserved. There were positive and negative features in both homes, and the child would hopefully achieve balance by exposure to both: L.M. v. K.P., 2024 ONSC 2959 (CanLII), at paras 19 & 41.

In E.M.B. v. M.F.B. (2021), the mother accused the father of not adequately feeding the child, and she was sending the child for parenting time with a cooler of food. The father sought an order preventing the mother from sending food for the child. Justice Mandhane observed that the father had “generally acquiesced” in major decisions made by the mother about the child, but he had shown himself capable of providing for the child’s basic needs during his parenting time. There was no evidence to justify “disrupting the presumption set out in s. 16.2(2) of the Divorce Act that the party exercising parenting time has exclusive authority to make day-to-day decisions”. Rather than sending food, the mother should keep the father informed about the child’s dietary needs and preferences. The child, who was 4 years old at the time of the motion, would eventually be able to communicate her preferences directly: E.M.B. v. M.F.B., 2021 ONSC 4264 (CanLII), at paras 124 & 147-149.

In Sadikali v. Sadikali (2023), the father sought an order that the mother cooperate in imposing certain household rules and discipline consequences on the children. Justice Fowler Byrne observed that while “a common approach to parenting is always preferred”, this is only possible if the parents can “communicate in a mature and civilized manner, with the children’s best interests at heart.” The court was not prepared to impose rules and a discipline regime on the children. There was no evidentiary basis that the rules were in the children’s best interests, and it is not the court’s role to impose itself in “the day to day lives of the litigants”. Each party would “set their own rules when the children are with them.”: Sadikali v. Sadikali, 2023 ONSC 4639 (CanLII), at paras 3 & 58-59.

In Y.V. v. V.Y. (2023), the mother was a Jehovah’s Witness and was keeping the child out of school during Halloween and Christmas celebrations, over the father’s objections. The mother also wanted to attend Jehovah’s Witness events with the child during the father’s parenting time. The court relied on s. 16.2(2) of the Divorce Act in holding that each party was “entitled to participate in religious and cultural events and activities as they see fit on their own parenting time, with neither parents’ (sic) religious views or practices taking priority over the other.” Each parent would decide whether the child would participate in holiday celebrations at school during their parenting time, and the mother would be free to attend religious events with the child during her parenting time. However, a child’s religion is a “significant decision” about a child’s well-being which falls under the definition of “decision-making responsibility” in s. 2(1) of the Divorce Act. Decision-making about religion would therefore normally be allocated under s. 16.3 of the Act, as opposed to s. 16.2(2): Y.V. v. V.Y., 2023 ONSC 5461 (CanLII), at paras 91-93.

While courts are reluctant to interfere with the presumption of “exclusive authority” in s. 16.2(2), this does not mean that courts do not appreciate the value of consistency between households. In J.B.-S. v M.M.S. (2022), the New Brunswick court noted that the children were approaching an age where “consistent household and discipline rules would be important”. The court encouraged “the parties to start sharing some information and to find a compromise to ensure consistency regarding household and discipline rules”: J.B.-S. v M.M.S., 2022 NBQB 18 (CanLII), at para 128.

*with thanks to Vanessa Lam for her suggestions and edits.