Noémie Gagnon-Bergeron- Co-Parenting Challenges & Parental Responsibilities: Who Decides When Parents Can’t Agree? Published Dec 26, 2024
Joe and Jane decided to go their separate ways in 2022, but they are still in each other’s lives because they have the privilege of raising their child together. Co-parenting after separation is hard, but they’ve made it work so far.
Last week, however, Joe and Jane reached an impasse – they couldn’t come to an agreement on a decision for their child. Joe wants the child to receive a new experimental treatment for a rare condition that their child has, whereas Jane does not feel comfortable with that, given how new the treatment is.
So, what happens when parents can’t agree on medical decisions? Who gets to decide under BC family law?
You might be thinking: “Doesn’t it depend on who has custody?” In a way, you’d be right, but it’s a bit more nuanced than that.
First of all, BC family law did away with the term “custody” and replaced it with two separate and distinct parenting terms: Parenting Time and Parental Responsibility. The parents of a child, by default, are assumed to share parenting time and parental responsibilities equally for their child, unless there is an agreement or court order stating otherwise. This blog will focus on Parental Responsibilities; specifically what they are, how they can be shared, and who can have them.
Equal Parental Responsibility in BC Family Law
Parental responsibilities are the decisions that a guardian has to make for the well-being of the child. These include making decisions about the child’s medical treatment, religious upbringing, education, making day-to-day decisions, and being able to consent on a child’s behalf, etc. Section 41 of the Family Law Act of British Columbia sets them out in more detail if you’re interested in the specifics.
On the question of who can have “Parental Responsibilities,” I’ll take this opportunity to point out that parents are not the only people that can be guardians. A person can become a guardian in many different ways, such as through adoption, or through a court order. A person other than the child’s parents can become a guardian even if the child’s parents are still alive. So, it’s important to understand that even if a child’s parents are alive, that doesn’t mean that both or either parent will have the parental responsibilities for their child. As complicated as this might sound, I mention it here simply to emphasize that what we call “Parental Responsibilities” is just a term used to describe the decision-making power that a guardian may have for a child.
The default, however, as mentioned earlier, is that parents share parental responsibilities equally. This is because part of that assumption is that parents are guardians for their children. There are, of course, exceptions which we briefly touch on below. So unless there’s an agreement or court order stating otherwise, both parents can make a decision regarding their child, and both parents have to be on board with that decision.
What Happens If One Parent Has All Parental Responsibilities?
Another way to divide up parental responsibilities is to allocate them all to one guardian. This means that if one parent is incapable or unwilling to make decisions for their child, there can be an agreement or court order that one guardian have all of the parental responsibilities, meaning they make all the decisions regarding the child’s well-being. This is not the default rule, though, so an agreement or court order is needed to make that official.
Can Parenting Responsibilities Be Divided?
There have been a few interesting cases where a Judge has ordered some specific parental responsibilities to one guardian, and the remaining parental responsibilities are either shared or allocated to the other parent. See, for example, the case of B.D.M. v. A.E.M., 2014 BCSC 453 where the Honourable Justice Sewell did just that – an order was made whereby the mother had the sole decision-making power when it came to giving, refusing, or withdrawing consent to medical, dental, and other health-related treatment, whereas for every other parenting responsibility, the mother had final say but still had to consult the father prior to making a decision. This is not a typical way to allocate parenting responsibilities, but it’s certainly possible.
Joyce-Model for Parental Responsibility
Oftentimes, the reason for needing the reallocation of parental responsibilities amongst the guardians is because the guardians have a hard time reaching an agreement. In cases where one guardian has taken on a bigger decision-making role for the child, it is not uncommon to see what we call a “Joyce-Model” for parental responsibility.
Essentially, this type of agreement or order states that parental responsibilities are still shared, in that both guardians (assuming there are 2 parents or caretakers in this scenario) are able to make decisions for the child and both are required to keep the other guardian informed, but in the event of a disagreement there is one guardian that has final say. The intention with this is to provide a middle ground between situations where the guardians share parental responsibilities but are unable to make a decision due to constant disagreements, with the drastic situation of having to remove parental responsibilities from one guardian altogether. The idea is that both guardians must still be involved in the child’s life, but the child doesn’t have to wait on the sidelines as the guardians fight before a decision can be made.
How Should Parental Responsibilities Be Allocated?
Like all things in family law, every case is unique. What’s best for one child is likely not what’s best for the child next door. In the case of Joe and Jane mentioned at the start of this blog, they have several options. For example, they can:
- sign an agreement or get a court order for one parent to have all of the parental responsibilities;
- sign an agreement or get a court order that they split specific parental responsibilities amongst themselves;
- sign an agreement or get a court order for a Joyce-Model so that one parent has final say in the event that they can’t agree on the right decision to be made for the child;
- take their specific issue to a mediator, parenting coordinator, or a Judge to make a decision on whether their child should get that medical treatment or not, without changing the allocation of their parental responsibilities.
There are many other options for Joe and Jane, but those are common approaches to the issue of parental responsibility. If you find yourself in a situation where you are unsure of how to move forward with parenting responsibilities for your child, any of our very capable lawyers here at Portside Law are ready to help!
Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.