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This is some of the joint custody case law I have already reviewed.
In Mudie v. Post, 1998 CanLII 14883 (ON SC), [1998] O.J. No. 3180, Justice Salhany built upon his reasoning in Kaemmle v. Jewson, [1993] O.J. No. 2597 in holding that the parents of a child may be granted joint legal custody of the child and that each party may be granted legal custody while the child is in that parent’s physical custody. He stated the following:
41 In Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70, I expressed the view that there was no legal reason why "joint legal custody" cannot be separated from "joint physical custody". I said there, at p. 73,
"Traditionally, the courts have considered that a joint custody order must involve mutual and overlapping rights and duties by the joint custodians. I have some difficulty in understanding why that approach has been been [sic] considered to be essential to a joint custody regime. There are two aspects to a joint custody order - one is legal custody, the other is physical custody. Although the courts have recognized that there can be divided custody between the parents when determining the aspect of physical custody, there has persisted the view that legal custody must be undivided in a joint custody order. Surely, the concept of joint custody can be a shifting one. When the child is under the care and control of a particular parent pursuant to a joint custody order, why can not that parent have exclusive legal as well as physical custody, care and control of that child for the duration of the period specified in the order?"
One of the main arguments advanced by those who believe that legal custody should not be separated from physical custody is that it does not work. My experience, after trying custody cases for almost 20 years, is that it does work and works far better to reduce post-trial applications than a sole custody order. Indeed, the frequent applications that are brought in this court in this jurisdiction after a sole custody order has been made to enforce an access order has led me to the conclusion that joint custody orders are less subject to ongoing litigation than sole custody orders.
As I said in Kaemmle v. Jewson,
"A joint custody order, on the other hand, has a psychological advantage of allowing parents to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future. Joint custodial parents may be prepared to accept that they cannot determine what school the child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues, such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church, and visiting the doctor."
Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child's life, yet have difficulty communicating or reaching a consensus on the child's upbringing. See T.J.M. v. P.G.M.(2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.
[para11] A joint custody order, on the other hand, has the psychological advantage of allowing a parent to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child’s future. A joint custodial parent may be prepared to accept that they can not determine what school their child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church and visiting the doctor.
[para12] I cannot agree with the suggestion that a sole custody order which entrusts all legal decision making in the hands of one parent will necessarily minimize the conflict between them. Parents who declare war on one another will continue to battle whatever order the court makes. I view the role of the court in custody matters as one of attempting to balance the competing interests of suitable parents, remembering that, above all, the best interests of the child are paramount. But it must be remembered that often what is in the best interests of the child is to know that both parents are interested in playing an important and possibly equal role in his or her life.
[para13] This is not to suggest that there may not be conflicting legal duties and responsibilities in a joint custody regime that will have to be resolved occasionally by the courts. In my experience, these problems are far outweighed by the frequent applications that are made to the court in those instances where sole custody has been granted. Joint custody orders are more apt to encourage the parents to co-operate than sole custody orders. The philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operat
I have considered the recent comments of Justice Benotto in the case of M. v. F.[28] wherein speaking for the court she opines that court can make no order for custody:
For many years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.
It was therefore open trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody”. It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.
[227] However, in this case given the multiple medical and other professionals involved in Dean’s life and the difficulty that the father has encountered obtaining medical and other records from the various institutions, I find that using the traditional terms of “custody” and in this case the term “joint custody” is necessary to ensure there is no further misunderstanding about the ability of both parents to access information about their son. Based on the evidence before me, I find that the reputable institutions involved in this case have been stymied by the mother and their own internal regulations about the release of information and that clear language indicating that both parents are custodial parents is required in addition to a detailed parenting plan.
In Mudie v. Post, 1998 CanLII 14883 (ON SC), [1998] O.J. No. 3180, Justice Salhany built upon his reasoning in Kaemmle v. Jewson, [1993] O.J. No. 2597 in holding that the parents of a child may be granted joint legal custody of the child and that each party may be granted legal custody while the child is in that parent’s physical custody. He stated the following:
41 In Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70, I expressed the view that there was no legal reason why "joint legal custody" cannot be separated from "joint physical custody". I said there, at p. 73,
"Traditionally, the courts have considered that a joint custody order must involve mutual and overlapping rights and duties by the joint custodians. I have some difficulty in understanding why that approach has been been [sic] considered to be essential to a joint custody regime. There are two aspects to a joint custody order - one is legal custody, the other is physical custody. Although the courts have recognized that there can be divided custody between the parents when determining the aspect of physical custody, there has persisted the view that legal custody must be undivided in a joint custody order. Surely, the concept of joint custody can be a shifting one. When the child is under the care and control of a particular parent pursuant to a joint custody order, why can not that parent have exclusive legal as well as physical custody, care and control of that child for the duration of the period specified in the order?"
One of the main arguments advanced by those who believe that legal custody should not be separated from physical custody is that it does not work. My experience, after trying custody cases for almost 20 years, is that it does work and works far better to reduce post-trial applications than a sole custody order. Indeed, the frequent applications that are brought in this court in this jurisdiction after a sole custody order has been made to enforce an access order has led me to the conclusion that joint custody orders are less subject to ongoing litigation than sole custody orders.
As I said in Kaemmle v. Jewson,
"A joint custody order, on the other hand, has a psychological advantage of allowing parents to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future. Joint custodial parents may be prepared to accept that they cannot determine what school the child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues, such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church, and visiting the doctor."
Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child's life, yet have difficulty communicating or reaching a consensus on the child's upbringing. See T.J.M. v. P.G.M.(2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.
[para11] A joint custody order, on the other hand, has the psychological advantage of allowing a parent to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child’s future. A joint custodial parent may be prepared to accept that they can not determine what school their child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church and visiting the doctor.
[para12] I cannot agree with the suggestion that a sole custody order which entrusts all legal decision making in the hands of one parent will necessarily minimize the conflict between them. Parents who declare war on one another will continue to battle whatever order the court makes. I view the role of the court in custody matters as one of attempting to balance the competing interests of suitable parents, remembering that, above all, the best interests of the child are paramount. But it must be remembered that often what is in the best interests of the child is to know that both parents are interested in playing an important and possibly equal role in his or her life.
[para13] This is not to suggest that there may not be conflicting legal duties and responsibilities in a joint custody regime that will have to be resolved occasionally by the courts. In my experience, these problems are far outweighed by the frequent applications that are made to the court in those instances where sole custody has been granted. Joint custody orders are more apt to encourage the parents to co-operate than sole custody orders. The philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operat
I have considered the recent comments of Justice Benotto in the case of M. v. F.[28] wherein speaking for the court she opines that court can make no order for custody:
For many years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.
It was therefore open trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody”. It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.
[227] However, in this case given the multiple medical and other professionals involved in Dean’s life and the difficulty that the father has encountered obtaining medical and other records from the various institutions, I find that using the traditional terms of “custody” and in this case the term “joint custody” is necessary to ensure there is no further misunderstanding about the ability of both parents to access information about their son. Based on the evidence before me, I find that the reputable institutions involved in this case have been stymied by the mother and their own internal regulations about the release of information and that clear language indicating that both parents are custodial parents is required in addition to a detailed parenting plan.
. I remembered the word blissful and that was it.
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