Communication is key: Justice Chappel’s decisions on decision-making

June 30, 2024 • 4 months ago • by Amruta Ponkshe

Originally published in the OFLM 2024-06 edition

Overview

It is often difficult for lawyers to advise clients with sufficient confidence whether it is in the children’s best interests for parents to exercise sole or joint decision-making responsibilities.

The reason is that considering the legal principles and applying them with insufficient information results in genuine uncertainty.

Nevertheless, knowing what those legal principles that need to be considered are, is a crucial first step.

Those principles allow lawyers to explain the legal framework to clients at initial consultations adequately, and then should a motion or trial be necessary, to delve into the facts of the case and to manage client expectations relating to the outcome of a motion or trial.

This article highlights the important decision-making legal principles in the latest case of Justice Chappel, namely, S.V.G. v. V.G. (2023 ONSC 3206). And, after analyzing those principles, three recent decisions of Justices Agarwal, Sharma and Kraft are reviewed to understand how they applied those same principles.

Introduction

Section 16(1) of the Divorce Act confirms that the court should only consider the best interests of a child in making parenting orders. As Justice Lafrenière stated in J.B.H. v. T.L.G. (2014 ONSC 3569) at paragraph 354, the ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is cooperative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.”

There is consensus among judges that to make an order for joint decision-making responsibility, there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. This principle was emphasized by the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005 CanLII 1625 (ONCA)).

Section 16(3) of the Divorce Act also lists the ability and willingness of the parties to communicate and cooperate with one another on matters affecting the child as one of the factors the court should consider in determining the best interest of the child.

Case law is replete with discussions on the interplay between effective communication and decision-making responsibility. But it is Justice Chappel’s comprehensive summary in S.V.G. v. V.G. (and her earlier decisions) of the relevant legal principles on this topic that has become a one-stop solution for other judges and family lawyers alike.

Discussion in S.V.G. v. V.G. (2023 ONSC 3206)

Before we jump into Justice Chappel’s latest decision, we first need to mention Jackson v. Jackson (2017 ONSC 1566) and Roloson v. Clyde (2017 ONSC 3642). At paragraphs 65 and 59 of those cases (respectively), Justice Chappel summarized a number of general principles for the court to consider in determining whether it is in the best interests of a child to order joint decision-making responsibility.

Later in McBennett v. Danis, (2021 ONSC 3610), at paragraph 97, Justice Chappel added to her previous discussion in Jackson and Roloson, and listed fifteen principles discussing joint decision-making responsibility.

Most recently in S.V.G. v. V.G. (2023 ONSC 3206), at paragraph 111, her Honour reviewed more recent case law and put forth twenty relevant principles, as follows:

There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas.
Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children.
In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. Where there is a history of significant conflict that has impacted the functioning and parenting of the parties and the wellbeing of the child, these factors will support an order for sole decision-making responsibility. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement.
The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties' ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making.
The court is not required to apply a standard of perfection in assessing the parties' ability to cooperate and communicate with each other on matters relating to the children. As Quinn J. remarked in the often-quoted case of Brook v. Brook, 2006 CarswellOnt 2514 (S.C.J.), "the cooperation needed is workable, not blissful; adequate, not perfect." The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties' communication to obtain a clear sense of the nature and extent of the discord.
The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The court must carefully consider the parties' past and current parenting relationship and reach its own conclusions respecting the parties' ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact negatively on the well-being of the children.
If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the turmoil reasonably well and make decisions in the child's best interests when necessary, an order involving joint decision-making may be appropriate. The issue for the court's determination is "whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis".
In addition, where there has been some conflict in reaching decisions, the court should consider whether the differences in perspectives and the sharing of information supporting those perspectives have ultimately resulted in more positive outcomes for the child. Evidence of challenges in working through parenting issues that result in better results for the child may support joint rather than sole decision-making.
In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication. Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party. Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions.
However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order. This principle applies even where both parties are attentive and loving parents. In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order that includes elements of joint decision-making responsibility. There must be a clear evidentiary basis for believing that joint decision-making would be feasible.
The quality of each party's past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.
However, the mere fact that both parents acknowledge that the other is a "fit" parent does not mean that it is in the best interests of the child for a joint decision-making order to issue. The determination of the appropriate decision-making arrangement must take into consideration all factors relevant to the child's best interests.
A party's failure to financially support their children in a responsible manner may militate against an order for joint decision-making responsibility, as this reflects poor judgment and an inability to prioritize the child's interests and needs.
In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome.
In situations involving children with special needs, the extent of the parties' involvement in addressing those needs and their willingness to consider reasonable recommendations from knowledgeable and experienced professionals involved with the child in addressing those needs are important considerations.
In addition, in situations where there is conflict regarding a course of treatment or therapy for a child, evidence that a parent has drawn the child into the conflict by attempting to make them an ally in their position on the issue may support an order for decision-making in favour of the other party.
Another important consideration in situations involving children with special needs is the need for timeliness in decision-making. If the evidence indicates that efforts to reach parenting decisions has led to inappropriate delays in addressing the child's needs, with no positive outcomes for the child, this may support an order for sole rather than joint decision-making.
In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint decision-making arrangement will be particularly pressing in such circumstances.
The wishes of the child will also be relevant to the determination of the appropriate decision-making disposition in cases involving older children. Although a child's wishes in such circumstances may not necessarily synchronize perfectly with the child's best interests, "the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child's wishes".
Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime. (emphasis added) (citations omitted)

In addition to this summary, and after discussing section 16.3 of the Divorce Act, Justice Chappel also listed the various options available to the court in crafting tailor-made decision-making frameworks to suit unique facts of each case, at paragraph 107. The options available to the court are as follows:

It may grant sole decision-making responsibility in all areas to one spouse.
It may grant joint decision-making responsibility in all areas to both spouses.
It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility, but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
Another option open to the court is to require the parties to engage in all reasonable efforts and take all reasonable steps to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement. This option typically includes a detailed decision-making framework that establishes timelines for parties to exchange their positions and information on issues and requires them to take particular steps in an attempt to decide matters jointly.

Application to Unique Facts of Each Case

Since Justice Chappel first produced a summary of the legal principles discussing the interplay between effective communication and decision-making in Jackson, other judges in Canada have made favourable references to and reproduced Justice Chappel’s summaries (including the one summarized above from S.V.G. v. V.G.) on this topic.

Below are three decisions from the Ontario Superior Court of Justice released in 2023 or 2024 where the court applies principles from Justice Chappel’s summary in making an order for decision-making responsibility.

Albaz v. Rihawi – Agarwal J.

The Applicant mother in Albaz v. Rihawi (2024 ONSC 812) was seeking sole decision-making responsibility for the parties’ four children, between the ages of 8 and 16 years. She proposed to consult with the Respondent father but retain the right to make the final decision. The Respondent father sought sole decision-making responsibility for the younger two children.

Justice Agarwal referred to Justice Chappel’s decision in McBennett and reiterated that the best interests of the child cannot be advanced if the parties cannot make important decisions about the child under a joint decision-making arrangement. His Honour also discussed that in analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict.

In this case, there was a total breakdown in communication between the parties. Justice Agarwal noted that the parties’ written communication bristled with passive-aggressive comments and tone. If the parties communicated in person, it inevitably led to police or CAS intervention.

His Honour concluded that the utter lack of cooperation and communication between the parties militated against any for of joint decision-making. The Applicant mother was ordered to have sole decision-making responsibility for all four children.

It is peculiar to note that neither party asked for joint-decision-making, implicitly acknowledging their inability to effectively communicate with the other.

Kumerdjieva v. Cerasuolo - Sharma J.

The Applicant Mother in Kumerdjieva v. Cerasuolo (2024 ONSC 3029) brought a motion to change the final order of Justice Shore from 2021. She sought final decision-making responsibility for the parties’ 11-year-old daughter. The Applicant Mother took the position that joint decision-making, with the assistance of a parenting co-ordinator, was not working for the parties.

Once his Honor had determined that a material change in circumstances had been established, the next step was for the court to embark on a fresh inquiry into the best interest of the child. Justice Sharma relied on Roloson stating that “there is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements”.

Justice Sharma noted that the Respondent Father had breached communication orders and deadlines which had impacted the Applicant Mother’s ability to schedule events for the child. There was also evidence of the Respondent Father not responding to requests for a travel consent letter in a timely manner on numerous occasions. His Honour also found that the Respondent Father engaged in abusive communication with the Applicant Mother. His Honour concluded that “respect is a minimum requirement for a successful co-parenting arrangement” and the Respondent Father had not demonstrated that. The Respondent Father had also frustrated the parenting co-ordinator process, leading to the resignation of the parenting co-ordinator.

Justice Sharma noted that, on the other hand, though the Mother lacked capacity to effectively co-parent with the Father, she had changed her approach over time. Her communication was consistently polite, timely, respectful and co-operative when dealing with the Father. When necessary, she obtained the advice and opinions of third parties (e.g., the parenting co-ordinator, the child’s physician or therapist), shared them with the Father, and she proposed child-focused solutions. Justice Sharma concluded that “(t)hese are hallmarks of a co-parent seeking to co-parent effectively and in the best interests of a child.”

The Mother was awarded sole decision-making responsibility with a positive onus on her to consult with the Father and consider his views prior to making major decisions for the child. Justice Sharma also ordered that communication between the parties would take place only through email correspondence, to document the process and to minimize the possibility of the child’s exposure to parental tension and conflict. His Honour also set down a 48-hour deadline for one party to respond to the other’s correspondence about major decisions, failing which consultation between the parties would be deemed to have occurred.

Predotka v. Dudek - Kraft J.

In Predotka v. Dudek (2023 ONSC 7025), Justice Kraft was presented with a case that began in a very unfortunate way, causing the trust between the parties to be significantly eroded. Just after separation in 2016, the Respondent Mother removed the child from daycare without notice to or obtaining the Applicant Father’s consent and travelled with the child to Winnipeg. This, and the Mother’s mental health difficulties, caused the parties’ co-parenting relationship to be defined by mistrust. The parties reached an interim agreement at a case conference for the Respondent Father to have sole decision-making responsibility for the child.

At trial, the Applicant Father maintained that it was in the child’s best interests for him to continue to have sole decision-making responsibility over the major decisions that impacted the child. The Father submitted that he had made decisions for the child since she was a year old, and that the child had thrived in his care. He also submitted that he had demonstrated a willingness to keep the Respondent Mother informed about the child.

The Respondent Mother maintained that she had worked on her mental health issues, including taking an anger management course and a parenting course. She also submitted that while the Father was capable of making important decisions for the child, he did not involve the Mother in these decisions or consult with her before making decisions for the child. She was afraid that the Father had minimized her parental involvement and demonstrated the lack of value he placed on the child’s relationship with her mother.

In analyzing the parties’ ability and willingness to communicate with each other, Justice Kraft relied on the OCL lawyer’s assessment report. Her Honour concluded that the court had little faith that either parent would be able to cooperate and communicate with the other effectively to co-parent the child.

Justice Kraft reproduced the relevant principles from Justice Chappel’s summary in S.V.G. and reiterated the five options available to the court in terms of an order for decision-making.

Her Honour considered the advantages of a joint decision-making framework but held, at paragraph 26, that “joint decision-making is not a panacea”.

Ultimately, Justice Kraft was not persuaded that the Father would start to consult with the Mother if he continued to have sole decision-making responsibility. It was important that both parents be involved in the important decisions that impact the child, particularly, since the Mother felt marginalized by the Father and the evidence was clear that the Father did not value the child’s relationship with her mother. In these circumstances, Justice Kraft am persuaded that one party or the other must be given decision-making authority over each of the matters that impacted the child.

Her Honour decided that it was in the child’s best interests that the parties made all reasonable efforts and took all reasonable steps to attempt to reach decisions relating to the child jointly. A detailed framework for the parties’ decision-making was structured. If the parties were unable to reach a consensus after following the framework, they were to engage in mediation or parenting coordination to resolve the issue. If, even after mediation or parenting coordination, the parties were unable to reach an agreement, it was in the child’s best interests that the Mother ultimately had final say on health matters and the Father had the final say on education and extra-curricular matters. This ensured that further court intervention was not required.

Conclusion

When attempting to advise on the best decision-making regime for a client, it is important to be up to date with the latest legal principles. Kaplanis was released in 2005, and the law has evolved significantly since then.

Fortunately, Justice Chappel has continued to provide excellent summaries of the latest decisions on the topic. And her latest case of S.V.G. v. V.G. is no exception. It is an excellent resource on the discussion on the interplay between effective communication and decision-making.

Lawyers should therefore use the above principles as a guide at various stages of their client’s case.

And since there are significant repercussions in not interacting effectively with a former spouse, lawyers should also advise clients of the do’s and don’ts of positive communication that the above-mentioned cases clearly show.