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Parents Get Along With Kid – But Not Each Other: Is Joint Custody a Good Idea?

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Parents Get Along With Kid – But Not Each Other: Is Joint Custody a Good Idea?

As we wrote in an earlier blog about the decision in Pollack v. Pollack  [1995] O.J. No. 3792 (Gen. Div.), when courts find that even when separated or divorced parents are engaged in a “power struggle,” court will sometimes award them joint custody.

This same approach was taken in a case called S.R.S. v. A.H.H. The parents had been separated for several years, but still had an acrimonious relationship with each other. Nonetheless, each of them had a good relationship with their children one-on-one, and they had continued to share the parenting as they had done since the children were born. The children were clearly bonded to both parents, whom the court said were “satisfactory, albeit not perfect, care providers.”

In this scenario, and despite their relationship problems, the court had to reconsider the shared parenting arrangement. For one thing, both mother and father themselves felt it was no longer working. More problematic was the nature and tenor of the problems between them: They disagreed about financial issues, about whether a certain car was a gift to the mother from the father, and about who should have control of the passports, health cards and social insurance cards.

The former couple also had an established tendency to involve the police in their frequent disputes, (which admittedly never turned physical). For example, the father called the police on the day the trial was to begin because the mother was a few minutes late in sending the children down the hall to his apartment.

In assessing this scenario of ongoing acrimony, the court was mindful of the trend in these kinds of cases; for example in a case called Johnson v. Cleroux, the Ontario Court of Appeal cautioned that “joint custody requires a high degree of cooperation between parents and should be awarded only where parents have demonstrated the ability to cooperate.”

Still, in this case of persistently-warring former spouses the court concluded:

Whatever the genesis of the personality clash, it is clear that these parties have not yet learned to communicate effectively, and that they continue to have verbal fights bordering on physical disputes, even when the best interest of their daughters clearly demands that calm communication occur.

Still, the court was prepared under the circumstances to award them joint custody, although not without first admonishing the parents this way:

In this case, both parents want sole custody. I perceive that for each of them this would be viewed as a “victory”. This Court wishes to make it clear that there is to be no victory in the award of custody. These children are entitled to and must receive the loving support of both of their parents, whatever the terminology is used to address the custody and access situation. Despite the unfortunate verbal disputes and the frequent and unreasonable involvement of the police in this case, the parents have been cooperating, in the sense that the shared care arrangement is working. It is inevitable that the disputes will have caused the children some distress, but nonetheless it is apparent that they have managed to develop a close relationship with both parents and both sides of the extended family. This is hopeful.

Accordingly, the court refused to grant either of the parents the sole custody they wanted; instead it ordered that the existing shared care arrangement should continue.

For the full text of the decision, see:

S.R.S. v. A.H.H., 2003 CanLII 2254 (ON SC)

Pollack v. Pollack, [1995] O.J. No. 3792 (Gen. Div.)

Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No.1801

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.