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“Winner/Loser Syndrome” and Child Custody

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Written by Russell Alexander / (905) 655-6335

“Winner/Loser Syndrome” and Child Custody

It is no secret that the dispute resolution component of the Family Law process can foster a certain competitiveness among its participants.  Sometimes parents and former spouses lose sight of the larger objectives, to focus instead on a “win-at-all-costs” approach to their litigation.

This was the undercurrent in a case called Spry v. Estevez.  The mother wanted sole custody to remain with her, but the father wanted any order except for that one – joint custody, shared parenting, or anything but the one the mother was asking for. As the court put it:

He seeks any arrangement other than one in which Ms. Spry will have sole custody. He asks: “Why is custody, as requested by Ms. Spry, necessary in these circumstances?

The father pointed to comments by the Ontario Court of Appeal in an earlier decision called M. v. F., where Justice Benotto of that Court observed that provincial Family legislation did not require a trial judge to make an order for custody as part of any proceeding;  rather, a judge may grant custody if he or she saw fit.   This permissive, non-mandatory power was a good thing since it allowed sparring parents to get away from the win/lose mentality and instead focus on the best interests of their children.  As Justice Benotto put it:

For over twenty 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 to the 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.

After reflecting on this passage from the M. v. F. case, the court in Spry v. Estevez agreed that the legislation did not require a judge to make a custody order in every situation.   But it took a more pragmatic approach to the question of whether a “winner”/ “loser” mentality could really be avoided in Family Law cases:

I agree with [Judge] Benotto’s comments; however, the use of terms is for the parties to overcome if they proceed to trial. Lawyers, mediators, conference judges and all others in the family law system should make every effort to avoid custody litigation. By the time it comes to a trial, however, on the basis of positions taken and decisions made, there will be winners and losers. Given the narrow issues that I am asked to answer, if [the father] is successful on his view of the issues, he will be the “winner”, at least for the purposes of costs at the end of the trial.

If the “winner” gloats and attempts to abuse the other in some fashion based on the trial judge’s decision, there will, of course, continue to be losers – and likely more litigation. If the “loser” fails to accept the determination of the trial judge and fails to make the best of the new terms in the best interests of the children, there will continue to be losers. That is for the parties to determine. It seems to me that a trial judge can only hope that his or her decision is correct and is presented to the litigants in a fashion that is understandable and acceptable the extent that it can be. It is not for the trial judge to do something other than to apply the law to the facts as found simply because someone may take it badly.

Should the embedded notions of “winning” and “losing” be actively removed from the Family Law regime?  Would this make the process better?

What are your thoughts?

Spry v Esteves, 2016

M v. F., 2015 


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.