Joint Custody in Divorces
There had been an expanding trend, in Ontario, in household and divorce law, over the final few years, for household courts to order joint custody of children. The hope, by some, was that the parenting abilities of the parties could be improved with awards of joint custody. The recent Ontario Court of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend into perspective.
In this choice, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate with no screaming at every other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.
The Appeal Court held that, for an award of joint custody to be granted, there ought to be some evidence that demonstrates, that regardless of the parents personal strong conflict with each other, the parties can and have cooperated and communicated appropriately with 1 one more. In this case there was evidence to the contrary, there was no specialist evidence to support the trial judge determine how a joint custody order would advance the childs emotional and psychological needs and the kid was also young to communicate her own wishes.
Around the same time this case was decided, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, exactly where the appeal court upheld the trial judges order of joint custody. In this case the trial judge had the benefit of hearing the evidence of the Childrens Lawyer who presented the childrens wishes and who advised joint custody. It was held that the trial judge had heard evidence from third parties with respect to cooperation and suitable communication among the parties. The trial judge also looked at the history of co-parenting in the course of the marriage and that in spite of their intense conflict, the parties could and had efficiently communicated with every other and placed the interests of their children ahead their own, when necessary.
To summarize, in Ontario joint custody cases, it would appear that the courts will now be searching a lot more closely for evidence from third party and professional witnesses, which can demonstrate that the parties can and have cooperated and communicated appropriately and have been able to put aside their personal differences and conflict, for the benefit of the children. The lack of historical cooperation and appropriate communication among the parties will significantly limit the achievement of a joint custody application. The assumption by some, that the granting of joint custody will increase the parenting skills of the parties, will not be a sufficient reason on its personal to grant joint custody, in the absence of current great cooperation and communication among the parties.
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