(H. Linton photos)
The Ontario Court of Appeal has given a boost to parents seeking joint custody of their children.
A trial judge awarded joint custody and equal parenting time for both parents of two children. The wife appealed the decision, arguing that the judge had ignored the evidence that the parents could not communicate and also their history of domestic violence.
However, the Court of Appeal ruled that there was evidence before the trial judge suggesting that the parents would be able to communicate effectively and that joint custody was in the best interests of the children. The trial judge also took the history of violence between the parties into account; meaning the evidence was not such that the court should deprive the children of maximum contact with each parent.
Another of the wife’s concerns was that the trial judge did not impose a mechanism to resolve disputes, as neither parent was given final decision-making authority. The Court of Appeal noted, however, that the judge had no jurisdiction to impose any dispute resolution mechanism on the parties, and that the trial judge’s recommendation that they attend mediation was appropriate. Failing that, they will have to go back to court if they cannot agree.
This part of the trial judge’s decision was unfortunate. In high conflict cases like this one, it may be better for the children if the parents each have final decision-making in separate areas, sometimes called “parallel parenting”. Each parent has his or her own area of responsibility, reducing conflict between the parents and reducing the need for any conflict resolution process. The trial judge also could have retained jurisdiction to deal with this issue if the need arose later, leaving the door open for a parallel parenting kind of decision-making regime in the future if necessary.
It would be much better if Ontario passed legislation giving judges the authority to impose a parenting coordinator in appropriate cases, as is the case in many US states. And if judges were more willing to try imposing conditions, like the parties attend mediation screening, as conditions of parenting orders.
But the fact that the court cannot impost a conflict resolution process on difficult parents should not stand in the way of a joint custody arrangement if that is in the best interests of the children. For more information, see May-Iannizzi v. Iannizzi, 2010 CarswellOnt. 5353.
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