Reality check: 50/50 for a 3.5 year old?

[Tayken]

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09
Docket: DF 2217/09
URL: CanLII - 2011 ONSC 4305 (CanLII)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII)

I find the case law for VK v. TS has the best analysis of "communications" and the impact on custody. This case law is quite well known and has been used in a number of other matters considering it is only from 2011 that speaks volumes to the applicability in many matters.

See para. 63 through 96 under the heading:

VI. CUSTODY, ACCESS AND RESIDENCE: LEGAL PRINCIPLES
A. Legislative Framework

In paticular these paragraphs when it comes to "communications":

[70] Section 16(4) of the Divorce Act authorizes the court to make an order for custody in favour of more than one person. The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. The Act does not set out any specific criteria to assist in determining whether a joint custody order is appropriate, apart from the general “best interests” test.

[71] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger v. Kruger[18] and Baker v. Baker[19], the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with each other.[20] The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[72] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the ability of the parents to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[21]

[73] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.[22]

[74] The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[23] The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”[24]

[75] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order.[25] In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.[26]

[76] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.[27]

Good luck to any parent who claims they cannot "communicate" with the other parent in the year 2013. All it demonstrates is that you are "unwilling" to communicate with the other parent in my humble opinion.

Joint Custody in the model of parallel parenting with a 50-50 access schedule is the answer to the argument of not being able to communicate. The courts regularly order this so trying to "win" sole custody on "communication issues" is not going to win you anything but conflict and a very long and detailed posting CanLII these days and a parallel parenting order with 50-50 access.

Good Luck!
Tayken

 

[Canadaguy]

If you want 50/50, which seems to be the case.

Find a new lawyer. One whom actually believes he/she can win.

That's more important than whether or not he/she is correct in their assumption/opinion.

Just my 2 cents.

A good lawyer knows how to take a statement by the ex (like "you have to pay me SS") and respond with factual evidence on your side saying "no my clients ex, they don't have to do that"

As you get more familiar and do your own research you will be able to respond yourself, citing facts and other CanLii cases putting your ex's threats to bed and saving on costs not having to consult your lawyer and have them do everything.

One of the major cost savings in family law is to do all the leg work yourself and consult your lawyer as needed.

 

[firhill]

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09
Docket: DF 2217/09
URL: CanLII - 2011 ONSC 4305 (CanLII)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII)

I find the case law for VK v. TS has the best analysis of "communications" and the impact on custody. This case law is quite well known and has been used in a number of other matters considering it is only from 2011 that speaks volumes to the applicability in many matters.

See para. 63 through 96

Thanks to Tayken, for the Case Law linked above.

 

[Tayken]

Thanks to Tayken, for the Case Law linked above.

Credit were credit is due. The reason I know about this case law is WorkingDad's matter. It was cited in his case law which was the first time I saw it.

Also, credit should be given to the very Honourable Madam Justice D. Chappel. The honourable justice's detailed analysis of case law in the matter of "communications" and "parallel parenting" is incredibly well researched and written.

Also, the case law cited is so well regarded it is now being cited inter-jurisdictionally. For example:

Mo v. Ma, 2012 NSSC 159 (CanLII)
Date: 2012-04-19
Docket: 7736
URL: http://canlii.ca/t/fr7bj

[97] In the past, many courts found that if joint custody was not viable, then the only solution was an order of sole custody. However, in recent years a third option has evolved, that is an order for parallel parenting. In Baker‑Warren v. Denault 2009 NSSC 59 (CanLII), 2009 NSSC 59, this court held that a parallel parenting regime is usually reserved for those few cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the child. In K(V.) v. S(T.) 2011 ONSC 4305 (CanLII), 2011 ONSC 4305 (S.C.J.), Chappel J. reviewed the factors to be balanced when considering a parallel parenting arrangement at para. 96, which states as follows:

96 A review of the case‑law respecting parallel parenting suggests that the following factors are particularly relevant in determining whether a parallel parenting regime, rather than sole custody, is appropriate:

a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.


b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[98] An order for joint custody is not in the best interests of N, G, or D. Ms. Mo and Mr. Ma have been involved in an unending, conflictual parenting battle. There is no trust. They have absolutely no ability to communicate with each other. The parties do not have the skills that are required to make joint custody work. The court cannot award joint custody because such an order would only exacerbate the situation, and increase conflict beyond its current unacceptable limit. The children would be negatively affected.

But, as always, we should read the full posting to CanLII which has relevance to the other thread I posted:

[110] I have determined that it is in the best interests of N, G, and D to be in the sole custody of Mr. Ma, with reasonable access to Ms. Mo based upon the wishes of the children. D is not to be left alone overnight. He must have adult supervision. The parties are directed to attend counselling. Maintenance is payable at a rate of $586 per month. No retroactive maintenance was requested, and none is granted.

The thread I am talking about is this one:

http://www.ottawadivorce.com/forum/...access-custody-brampton-superior-court-14084/

Good Luck!
Tayken