Top 10 Observations About Parenting Arrangements From Moreira v. Garcia Dominguez
An Ontario Court of Justice decision released just a few days ago, called Moreira v. Garcia Domueingz, contains an exhaustive discussion by the Honourable Mr. Justice M. Zuker about parenting arrangements after separation and divorce, including the objectives of various arrangements, and the policy behind Canadian law. In fact, the judge makes so many important and noteworthy points, that I have split this Blog entry into two parts. Here is the first of them:
Notable observations Mr. Justice Zuker:
About parenting arrangements generally:
1. • “Family law is largely about distributing loss. In separation and divorce, there are no winners. When it is not possible for children to live in the same household with both parents, neither parent will usually have as much time with the children as he or she had during the intact marriage. The greatest conflict often concerns parenting arrangements after separation.”
2. • “The ties that bind parents together are only as strong as the bond between each parent and their children.”
3. • “There are numerous barriers to the creation of good-enough co-parenting relationships and multiple reasons why, despite significant involvement of a parent while the relationship was continuing, this does not translate into successful post-separation involvement.”
4. • “Increasingly, the term joint custody has been used to describe joint physical custody. Joint physical custody does not necessarily, of course, mean equal time. The trend in favour of mandatory parenting plans recognizes not only the advantages of advance planning for children, but also the changing demographics of the family. Laws that encourage the meaningful involvement of both parents may be described as aspirational.”
About the best interests of children as it relates to parenting arrangements:
5. • Quoting authors Paul Amato & Joan Gilbreth in “Nonresident Fathers and Children’s Well-Being: a Meta-analysis”, 61 J. Marriage & Fam. 557 (1999), the court observed: “ … [E]motional closeness and, particularly, ‘authoritative parenting,’ are highly beneficial to children. Authoritative parenting includes helping with homework, talking about problems, providing emotional support to children, praising children’s accomplishments and disciplining children for misbehaviour. The researchers concluded that ‘how often fathers see children is less important than what fathers do when they are with their children.’
6. • “Measures to encourage a continuing relationship between non-resident parents and their children should be seen as highly desirable in the absence of high levels of ongoing conflict between the parents, irrespective of the division of roles between the parents when the marriage was intact.”
7. • “As long as the parents live within a reasonable proximity to one another, there is a range of options for structuring parent-child contact, from limited involvement by the non-resident parent through to shared care. … It is in the best interests of children to try to reduce their exposure to conflict between their parents. This requires a focus on how the best interests of children could be served by the processes of adjudication, as well as using the best interests test to determine the appropriate outcome of the dispute.”
8. • “Of significance may be changes in the level of acrimony in the relationship with the other parent as time begins to heal the wounds of the separation and the initial grief, anger and resentment associated with relationship breakdown has subsided. What may be the best available option for a child when parents are in very high conflict may not be the best at a later time when the parents are capable of a more civil and cooperative relationship.”
About shared parenting:
9. • “There is a presumption in favour of equal shared parental responsibility. This can be rebutted in cases where there is a history of violence or abuse. … This court has a duty to consider whether an equal time arrangement is in the best interests of the child and reasonably practicable. If equal time is not appropriate then the court must consider what is termed ‘substantial and significant time’.”
10. • “Shared care arrangements do not necessarily last. Shared care is dependent on the parents living in relatively close proximity to one another and, for school-age children, to the child’s school. New partnerships or job opportunities for one or the other parent, or the need for one or both parents to move, may necessitate some adjustment to the shared care arrangements.”
For the full text of the decision, see:
Moreira v. Garcia Dominguez, 2012 ONCJ 128 (CanLII) http://canlii.ca/t/fqjbl
