Court Cases & Orders

Hybrid Orders: Which Parent Has Domain Over Which Topics? Here are the Factors

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Hybrid Orders: Which Parent Has Domain Over Which Topics? Here are the Factors

Every day, the Ontario Family Law Courts are challenged to make difficult decisions when settling disputes between divorcing parents.  Ideally, parents cooperate and make their post-split parenting decisions together, but this is often only a fantasy.  Many parents can’t even be in the same room together, much less work together on making joint decisions about their child’s wellbeing.

Some courts have opted to solve this by imposing what has been called “hybrid” court order.  It involves the court determining parenting for each parent, but then allocating decision-making between them, according to topic or “category”.  For example, one parent might be granted exclusive decision-making over the child’s health, while the other has decision-making authority over the child’s education.

This was the type of order the court considered in a case called McBennett v. Danis.   The parents had met online in 2007 and, after a rocky relationship, had a child together in 2014. When they split, they came to court to get a determination on what parenting arrangements were in their child’s best interests.

After extensively considering the background facts, the court had no difficulty making an order on how much parenting time each of them should have. But when it came time to determine how the parents should make important upcoming decisions about the child’s wellbeing, health and education should be made, the court came to a stumbling block due to certain areas of mistrust and acrimony between them.   Cooperative decision-making was likely impossible in the circumstances.

This led the court to consider a hybrid arrangement, under which it could allocate decision-making responsibility to the parents by topic-area. In this context, the court considered what it called the “rich body of caselaw” that has evolved to guide courts when crafting these hybrid arrangements. After emphasizing that the best interest of the child always govern, the court summarized that law, and started with these points:

  • There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas.
  • Instead, it should only be considered as an option if the court is satisfied – as a threshold matter – that both parties are fit parents, and are able to meet the general needs of the child.

Next, the parties’ ability to communicate is also important.  The court said this:

  • To make this kind of hybrid order, 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.
  • However, some evidence of communication is not enough, and does not dictate that a hybrid order must be made. Instead, the judge must carefully assess the facts of each case, including the parties’ level of communication.
  • This does not require a standard of perfection; instead the cooperation must be “workable, not blissful; adequate, not perfect.”

Level of conflict between the parents is also a concern.  As the court explained:

  • Occasional conflict does not preclude joint-decision-making.
  • Instead, 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 on the well-being of the child.
  • The court must also look at the source of any conflict.

Another factor is the parents’ respective fitness for parenting.  As the court put it:

  • 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 be made. Crafting the right arrangement means taking all factors relevant to the child’s best interests into account.
  • A party’s failure to financially support their child 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.

The court will take into account the child’s own preferences.  As the court explained:

  • In cases involving a very young child, the court must consider that he or she is unable to easily communicate their physical, emotional, developmental and other needs.
  • The wishes of the child will also be relevant when older children are involved, and will also impact the court’s choice on allocating decision-making.

Finally, there are also more esoteric factors, such as whether:

  • One party is seeking a hybrid arrangement solely as a means of controlling the other parent, rather than as a means of fostering the child’s best interests;
  • Each parent is able to place the needs of the child above their own needs and interests;
  • A hybrid order is more likely to escalate or else de-escalate the conflict between the parties;
  • The parents are likely to have new disputes about their respective areas of decision-making responsibility; and
  • One party is the major cause of discord between them, has a tendency to alienate the child from the other parent, or is unlikely to be able to disengage from combat.

The court summarized the objective of these hybrid orders and the relevance principles this way:

These types of decision-making frameworks evolved as a means of meeting the needs of children in circumstances where both parties have been involved and competent parents, and the child would benefit from both having a say on important matters, but the conflict between them is such that a traditional joint decision-making order or an order for sole decision-making in favour of one parent would not be in the child’s best interests.  Courts have recognized there are many merits to these types of regimes in appropriate cases.  They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship.   In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord.

Applying all these considerations to the case before it, the court in McBennett v. Danis directed the parents to first try to make “all reasonable efforts to decide significant issues” jointly, about their daughter’s medical and health needs.  But if that failed, they were each accorded the final say on a court-specified set of issues.  This was not only in the child’s best interests, but also reflected and capitalized on the parents’ respective strengths in an optimum manner.

For the full text of the decision,

McBennett v. Danis, 2021 ONSC 3610 

 

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.