More Observations About Parenting Arrangements From Moreira v. Garcia Dominguez
In a recent post, I highlighted some of the notable comments made last week by the Honourable Mr. Justice M. Zuker of the Ontario Court of Justice in a decision called Moreira v. Garcia Dominguez. In the context of determining a dispute about parenting arrangements between a high-conflict couple, Mr. Justice Zuker had many important points to make about how such arrangements are supposed to work, and the manner in which they often go wrong between even well-meaning parents who are separated or divorced.
For example, Mr. Justice Zuker summarized the policy behind the decision-making process courts must apply to determining precisely what arrangement should be applied to a child’s care:
• “Public policy suggests that we: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable and non-violent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.”
• “Nothing constrains the court’s broad discretion to determine, in light of all the circumstances, what custody arrangements serve the best interest of children. Each case must be evaluated on its own unique facts. Identified factors to consider are the nature of the child’s existing contact with both parents, the child’s age, community ties, and health and educational needs.”
• “The child’s best interest trumps that of either parent. However, to disavow the custodial parent’s influence on his or her child ignores the fundamental relationship between parent and child.”
• “No bright-line test can be formulated. Cases affecting the parent-child relationship are intensely fact-driven, which is why courts have developed best-interest tests that consider and balance numerous factors. Unless one is to apply a fixed but arbitrary rule, the issue can be resolved only on a case-by-case basis. Because they are fact-sensitive, no two cases are the same and it is therefore essential that the court have the flexibility to deal with unforeseen fact patterns. Given the many relevant factors, courts have explicitly rejected formulaic tests.”
• “That the interests of the child are closely interwoven with those of the custodial parent is consistent with psychological studies of children of divorced or separated parents. Social science research has uniformly confirmed the simple principle that, in general, what is good for the custodial parent is good for the child.”
• “A child’s best interests may be inextricably interwoven with the quality of life of the custodial parent, with whom the child lives and upon whom the child relies emotionally.”
• “What has not diminished over time is the court’s attention to the importance of not casting a child adrift in a sea of parental discord throughout childhood and adolescence, in the name of “shared” parenting.”
• “The determination of the child’s best interests cannot be made in a vacuum, but requires that the interests of the custodial parent also be taken into account.”
• “The best-interest standard represents a willingness on the part of the court and the law to consider children on a case-by-case basis rather than adjudicating children as a class or a homogeneous grouping with identical needs and situations.”
• “Several important guidelines can be taken from Justice Weiler’s reasons in Kaplanis v. Kaplanis, and Ladisa v. Ladisa. … They are as follows:
(a) there is no default position in favour of joint custody in Ontario;
(b) each case is fact-based and discretion-driven;
(c) past parenting experience both during cohabitation and after separation is of critical importance to a court’s decision on whether to order shared parenting in any form;
(d) 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, but hoping that communication between the parties will improve once the litigation is 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 for joint custody;
(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.
• “Custody and access decisions are inherently an exercise in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. …”
About joint custody:
• “From a child’s perspective, joint custody has an inherent appeal. It allows each parent to be actively involved in the child’s life, and to have meaningful input with respect to important decisions. It may help ameliorate a child’s sense of loss, and provide ongoing emotional reassurance that both parents still care – and care equally. Where separated parents can make joint custody work, the child – and the entire family unit – are likely to benefit.”
• “But joint custody will only work if the parents have the desire and the capacity to make it work. It is not a risk-free option. In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”
About parallel parenting:
• “Parallel parenting is a form or sub-category of joint custody where the court attempts to carve out the incidents of custody, providing each parent with an exclusive domain of responsibility so that one parent has the final say in the case of conflict. … [S]ome courts have made parallel parenting orders even in high-conflict cases in circumstances, for example, where a sole custody order might facilitate parental alienation. The court must still be satisfied that that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child.”
• “In other cases, parallel parenting has taken the form of both parents being independently granted the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without consent from the other parent. …”
• “Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child’s best interests. …”
• “Courts have declined to order parallel parenting where the parents were unable to agree on important decisions and their lack of cooperation meant that parallel parenting would cause conflict for the children.”
Finally, Mr. Justice Zuker also observed that parents are often too mired in their own conflicts to note the impact on their own children:
• “Whatever the specific source, parents’ inability to separate their parental roles from prior conflict in the marriage is often a significant contribution to the conflict after separation. This conflict is perhaps the most important variable in determining how the child adjusts. The first step in this process is to learn to disengage from the other parent. Disengagement is one of the possible styles of parenting after separation. If you disengage, it is as if you have developed a “demilitarized zone” around your children and have little or no contact with the other parent. When you disengage, you will avoid contact with the other parent so that conflict cannot develop. You must do this first to reduce the conflict and before you can move on to the next style of parenting.”
• “Too many parents in high-conflict matrimonial disputes are or appear to be totally oblivious to the potential adverse impact on children of high conflict. Too many parents in high-conflict matrimonial disputes are so self-absorbed and so absorbed in conflict that the best interests of their children are effectively ignored. Of course, they do not always perceive that this is the case. Sometimes, they simply may not care.”
• “Often the war between the parents is waged in the name of the children and – according to the parents – war is waged for the best interests of their children. Winning is said to be equated with the children’s best interest. But since “winning” is about the parents winning against each other, usually winning is not the same as the children’s best interests. Winning is the objective of war. It is the war that is the most hurtful to children.”
For the full text of the decisions, see:
Moreira v. Garcia Dominguez, 2012 ONCJ 128 (CanLII) http://canlii.ca/t/fqjbl
Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA) http://canlii.ca/t/1jnq6
Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA) http://canlii.ca/t/1jnq8
