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Old 05-02-2011, 03:25 PM
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Default Toward the differentiation of high-conflict families: An analysis of social science


Rachel Birnbaum and Nicholas Bala
Social science research and the courts have begun to recognize the special challenges posed by “high-conflict” separations for children and the justice system. The use of “high conflict” terminology by social science researchers and the courts has increased dramatically over the past decade. This is an important development, but the term is often used vaguely and to characterize very different types of cases. An analysis of Canadian case law reveals that some judges are starting to differentiate between various degrees and types of high conflict. Often this judicial differentiation is implicit and occurs without full articulation of the factors that are taken into account in applying different remedies. There is a need for the development of more
refined, explicit analytical concepts for the identification and differentiation of various types of high conflict cases. Empirically driven social science research can assist mental health professionals, lawyers and the courts in better understanding these cases and providing the most appropriate interventions. As a tentative scheme for differentiating cases, we propose distinguishing
between high conflict cases where there is: (1) poor communication; (2) domestic violence; and (3) alienation. Further, there must be a differentiation between cases where one parent is a primary instigator for the conflict or abuse, and those where both parents bear significant responsibility.fcre_1319 403..416

Keywords: High-conflict separation; differentiating high-conflict separation; high-conflict terminology; judicial differentiation of high-conflict families; understanding high-conflict terminology

article big (14p). I have PDF.
Here is one para what is quite interested (as a whole article) for me ...


The courts have often used “high conflict” terminology when deciding whether a case is not appropriate for joint custody.35 There is a presumption in case law in Canada against joint custody in cases of “high conflict.” For example, in one of the leading Canadian precedents, Justice Fraser of the Alberta Court of Appeal in Richter v. Richter stated that, “as a general proposition, joint custody and shared parenting ought not to be ordered when the parents are in substantial conflict with each other.”36 Similarly, in Kaplanis v. Kaplanis, the Ontario Court of Appeal reversed the decision of the trial judge to impose joint custody for the care of a three-year-old child, with the condition that the parents undergo counseling to improve their communication. Justice Weiler wrote:37 The fact that both parents acknowledged the other to be “fit” did not mean that it was in the best interests of the child for a joint custody order to be made. . . . The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication.

The evidence was to the contrary.
As a result of this judicial approach, parents (and their lawyers) who are seeking sole custody often characterize their cases as “high conflict.”38 However, in many of these cases, courts find that the parent is exaggerating the extent of the conflict, or the parent is purposely engaging in conflict to resist an order for joint custody. This purposeful engagement in conflict was found in 11 out of 22 reported cases in 2007–2009 where a claim for joint custody was resisted on the ground that it was a high conflict case.

In T.J.M. v. P.G.M., for example, counsel for the mother argued that imposing a joint custody order on the “highly conflicted parents” would increase the level of conflict to which the children would be exposed; therefore an order of joint custody would not be appropriate.39 The mother’s primary evidence of acrimony was that she herself made an unfounded report to child protection authorities that the father sexually abused their daughter. In Ferguson v. Gilmour, the mother claimed that joint custody was not working because of the conflict between the parties, which was mostly comprised of verbal abuse, and that she should be awarded sole custody.40 Similarly in MacKenzie v. O’Rourke and Garrow v. Woychesen, one parent opposed joint custody on the basis of the level of high conflict between the parties.41 In Garrow, the court suggests that the mother actively sought to build up a record of conflict, including a false allegation that the father assaulted her.42 In all four of these cases, the courts rejected the argument in favor of sole custody because of high conflict, and instead awarded some form of joint custody. In fact, there are several cases where courts have essentially held that a party is estopped from making the argument that conflict precludes joint custody, when they themselves are the instigator of such conflict.43

A variation of using the language of high conflict to obtain sole custody was the argument that was used by the father in Lawson v. Lawson.44 He argued that “rather than [it] being a high-conflict situation, it is an ‘angry mother situation’ ” and that he was more than willing to cooperate with the mother to make joint custody work. The trial judge and Ontario Court of Appeal rejected his argument on the facts of the case, though Gillese J.A. observed:45
Joint custody is not appropriate where parents are unable to co-operate or communicate effectively.

However, one parent cannot create problems with the other parent and then claim custody on the basis ofa lack of co-operation.
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