Recent case: Joint custody not appropriate

In the case of Moreira v Garcia Dominguez 2012 ONCJ 128, the mother sought an order for sole custody of the couple’s son, born in 2003, with regular access to the father and the father sought an order for joint custody with primary residence of the child to be with the mother. He wanted a parallel parenting regime in which he would have exclusive decision-making authority over the child’s education and the mother would have decision-making over the child’s extra-curricular activities.

In coming to his decision, Justice Zuker engages in a comprehensive review of both academic literature and case law on the matter of joint custody. For example, he quotes from June Carbone, From Partners to Parents: The Second Revolution in Family Law:

The battle lines in the custody wars at divorce are so well drawn that they can better be described as opposing trenches. On one side are those who would identify children’s well-being with continuing contact with both parents. They favour joint custody, liberal visitation, and limitations on custodial parents’ autonomy that secure the involvement of the other parent. In the other camp are those who argue that genuinely shared custody approaching an equal division of responsibility for the child is rare, and that children’s interests lie with the well-being of the parent who assumes the major responsibility for their care.

Justice Zucker notes that “shared care is a risk factor for poor mental health where there is high ongoing conflict between parents.”

He writes:

Where there are destructive patterns of conflict, there are often dynamics that ought to indicate that children are not the focus of the arrangement. The desire of one parent for an equal time arrangement may be driven by concerns about fairness to that parent, or equality, rather than the needs or interests of the children. It may also be motivated by a desire to control or punish the other parent. . . .It is in the best interests of children to try to reduce their exposure to conflict between their parents.

Justice Zucker points out that the child’s best interest trumps that of either parent, but also says, importantly for the women with whom we work:

That the interests of the child are closely interwoven with those of the custodial parent is consistent with psychological studies of children of divorced or separated parents. Social science research has uniformly confirmed the simple principle that, in general, what is good for the custodial parent is good for the child.

Joint custody, according to Justice Zucker, will only work if the parents have both the desire and the capacity to make it work. In the wrong family circumstances, it can “perpetuate hostilities, indecision, and power struggles.”

His decision is that sole custody to the mother is the “only sensible option.” As he writes:

 [The] [h]istory [of this couple] does not justify joint parenting. Their inability to effectively communicate and collaborate in [the child’s] best interest leads me to the conclusion that they are unlikely, in the near future, without great effort, to achieve a sufficient level of co-operation between them on issues surrounding his parenting. [The child] cannot wait. While I have considered some form of parallel parenting, in my view that is not viable here. There is simply no justification for shared or parallel parenting. . . [The parents] have not yet demonstrated the individual and collective maturity and flexibility consistently to speak and focus effectively with one another in a non-confrontational manner to develop and achieve common parental goals in [the child’s] life. They do not now have a co-operative mutual commitment to communicate fully, freely and easily with one another. I have no confidence in their current collective ability to change without counselling.

Justice Zucker also notes in coming to his decision that the father has a disrespectful attitude to the mother and flagrantly undermines her parenting.

While this decision is long (some 60 pages) it is worth reading in its entirety for Justice Zucker’s comprehensive review of case law, legislation in a number of jurisdictions outside Canada and his references to academic work on the topic of joint custody.

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