Joint Custody

“Custody” is generally understood to refer to the decision-making authority for the children.  These decisions include those pertaining to education, non-emergency medical care, religion, and recreational activities.  

Section 20 of the Children’s Law Reform Act establishes the presumption that the parents of a child are equally entitled to custody of that child.  When common law or married spouses separate, a parent’s entitlement to custody may be suspended if the parent consents or “acquiesces” to the child residing with the other parent in the absence of a court order or separation agreement.  In simpler terms, a parent may lose their custodial rights by failing to pursue an agreement or order for custody and access following a separation.  

In determining the custody arrangements for a child, the court will assess how parenting decisions were made both during the relationship and since separation.  Ultimately, if your matter is in court, a judge will make a decision determining the custodial arrangements that are in the children’s best interests.  

There are two primary types of custody: sole custody and joint custody. Where one parent has sole custody of a child, that parent is exclusively able to make major decisions for the children, without the input or consent of the other parent.  In contrast, if parents have joint custody of a child or children, the right to make decisions may be exercised by either parent (with the consent of the other).  

The Evolution of Joint Custody 

Joint custody orders are much more common today than they once were.  Nowadays, the Courts are reluctant to decide that one parent should be excluded from decision making for their child unless (a) they have been historically absent or unwilling to participate in decision making; and/or (b) if the relationship between the parents prevents effective co-parenting. In determining whether a sole or joint custody order is appropriate, the guiding principle is the children’s best interests.  

These days, courts are more inclined to order that parents have joint custody unless the parents are incapable of effectively communicating or making decisions together. Joint custody may also be inappropriate where there is a history of domestic abuse or there is a power imbalance between the parents which prevents one party’s voice from being heard.  

Guidelines in Considering Joint Custody 

Determining custody is a challenging issue for the courts who are tasked with deciding to what extent parents are required to be involved with one another in the rearing of their children.  In the recent case of Nderitu v Kamoji, 2017 ONSC 2617, Justice Shelston of the Superior Court of Justice summarized the following guidelines that a court considers when determining whether a joint custody regime is appropriate: 

1. The court must have some evidence that the parties are able to communicate effectively with each other in order to order joint custody; 

2. Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. Instead, the court must assess the nature, extent and frequency of the conflict and the impact of the conflict on the well-being of the child. If the evidence suggests that the parties have been able to shelter the child from conflict reasonably well and put the child’s interests ahead of their own, an order for joint custody may be appropriate; 

3. One parent cannot create problems with the other parent then claim sole custody on the basis of a lack of cooperation;  

4. Where it is necessary to preserve the balance of power between the parties, particularly in cases where parents are both caring and competent parents but one party has been primarily responsible for the conflict, joint custody may be appropriate; and 

5. In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future, the court must consider (a) the source of conflict; and (b) whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, or marginalizing the other parent in order to bolster their claim for sole custody.  

Is Joint Custody Best for your Child? 

Determining whether joint custody is appropriate is a case-specific exercise. For more information on whether joint custody may be appropriate in your matter, contact Morrison Williams today for a free initial consultation.