Written by Colin Steffler
As explained in a previous blog post, “custody” is a term that is often misunderstood and misused. It is often assumed that custody refers to where a child lives, but it actually refers primarily to decision-making authority. In most cases, custody takes one of two forms: sole custody or joint custody. “Sole custody” generally means that one parent has exclusive authority to make major decisions about his or her child’s life and upbringing, including decisions relating to the child’s health, education, and religious activities. In some cases, stipulations are made requiring the custodial parent to consult with the other parent before making major decisions, but, ultimately, the parent with sole custody has the final say. “Joint custody”, on the other hand, means that both parents bear equal responsibility for major decisions about their children’s lives and are expected to make those decisions together. So how is it determined which type of custody order is appropriate?
Best Interests of the Child
Pursuant to s. 24(1) of the Children’s Law Reform Act, every court claim dealing with custody of a child must be decided based on the best interests of the child. Section 24(2) goes on to list a number of factors the court must consider in determining what is in a child’s best interests, including:
- the love, affection, and emotional ties between the child and,
- each person claiming custody of the child,
- other members of the child’s family who reside with the child, and
- the persons involved in the child’s care and upbringing;
- the child’s views and preferences, if they can reasonably be ascertained;
- the length of time the child has lived in a stable home environment;
- the ability of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life, and any special needs of the child;
- the plan proposed by each person applying for custody of the child for the child’s care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and
- any familial relationship between the child and each person who is a party to the application.
This list is not exhaustive and courts have emphasized that decisions regarding custody are “fact-based and discretion-driven”. In other words, the determination of who should have custody of a child in any particular case must be based on what the judge, in his or her discretion, believes is in the child’s best interests, considering the specific circumstances of that particular child. As the circumstances in each case are, to some extent, unique, this means that the rationale for a custody decision in one case may not transfer exactly to another case. The court have, however, established a number of general principles to help guide decisions about custody.
General Principles Guiding the Determination of Custody
- The best interests of the child must be determined from the child’s perspective, and not the perspective of the parents. Determining custody is not about the parents’ “rights” or interests. Parental rights and preferences are relevant only “to the extend that they are necessary to ensure that the interests of the child are safeguarded and promoted”.
- There is no presumption or default position in favour of joint custody. However, some judges have suggested that the best interests of a child are generally better served by having two parents involved in important decisions, and may begin their individual analysis with a rebuttable presumption that joint custody is in the child’s best interests and then look for evidence that this is not the case.
- One of the most critical factors in determining whether joint custody is appropriate is the level of communication and cooperation between the parties, and their past parenting decisions, both during their relationship and following separation. The need for effective communication between parents is particularly important in cases involving very young children, who may be unable to fully communicate their needs.
- The level of communication and cooperation required for joint custody to be feasible is relatively low. As Justice Quinn noted in Brook v Brook, 2006 CanLII 12294, joint custody is not a matter of the parents “consulting on the myriad of day-to-day decisions involving the child; such an arrangement would be unworkable in virtually all separations.” It is rather a question of whether the court can reasonably see the parties “periodically communicating and cooperating on major decisions affecting the child, such as in areas of health, education, religion and residence.” The level of communication and cooperation required for joint custody is “workable, not blissful; adequate, not perfect.”
- Despite this relatively low threshold, if the evidence indicates that the parents have never been able to cooperate or communicate effectively, joint custody is not appropriate. The court cannot order joint custody based on a hope that communication will improve when litigation has ended. There must be some demonstrated capacity for effective communication and cooperation. This is the case even where both parties are competent parents and acknowledge each other as such.
- Joint custody will not necessarily be ruled out by occasional conflict between the parents. The court must consider the nature, extent, and frequency of the conflict. If, despite their occasional disagreement, the parents have been able to shield the child from conflict reasonably well, and put the child’s interests ahead of their own, joint custody may still be feasible.
- If there is conflict between the parties, the court must consider the source of that conflict. If one parent is creating problems with the other parent, “by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means”, that parent cannot use the conflict he or she has created as a basis to claim sole custody. “Where both parties are competent and loving parents, but one of them is the major source of conflict, this factor may support an order for sole custody in favour of the other party.”
- The child’s wishes are relevant, particularly when it comes to older children. The child’s views and preferences may not coincide exactly with his or her best interests, but the older a child gets, the more his or her cooperation is required for custody arrangements to work.
- It’s not about you – Custody is not about your “rights” as a parent, nor is it about what is convenient for you. It is a question of what is in your child(ren)’s best interests.
- Communication is critical – You and your former partner do not have to be best friends for joint custody to be feasible, nor do you have to agree on every minor parenting decision or have identical parenting styles. You just have to be able to have a reasonable conversation once in a while when there is an important life decision to be made.
- The threshold for communication and cooperation is low, but it is still there – Even if you are both competent and caring parents, joint custody won’t work if you can’t have a conversation without exploding at one another.
- If there is conflict, consider its source – If you’re claiming you need to have sole custody because the other parent keeps fighting with you, but you’re always starting the fight, you might unknowingly be handing the other parent sole custody.
Note – Most of the principles and quotations above are drawn from Justice Chappel’s decision in Thompson v Drummond, 2018 ONSC 1975, and particularly from her discussion of these principles at paragraph 52 of that decision.