Top 5 Principles on When Joint Custody Should Be Ordered
In some prior Blogs, we have covered some of the different forms of custody that the court can order under the Divorce Act, including sole custody and joint custody.
You may be wondering how a court decides which of these different forms to impose. Here is a “Top 10” list of the factors and principles that a court will take into account in deciding whether joint custody is the appropriate order to make in any given set of facts.
The list (in no particular order):
- In deciding about joint custody, the best interests of the child are the paramount factor for the court to consider.
- A child should have as much contact with both parents as is consistent with his or her best interests.
- A court can decide to make a joint custody order to preserve the balance of power between the parents.
- A parent’s past conduct is not relevant in the court’s joint custody determination unless that conduct is relevant to his or her ability to act as a parent of the child.
- The court must consider the willingness of parents to facilitate contact with each other; they need not agree to joint custody before a court can make such an order.
Also, the level of communication and cooperation between the parents are key factors in the court’s decision-making. In looking at the quality of both of these – both now and in the future – the court will examine:
- Whether there is at least some evidence that the parents are able to communicate effectively with each other.
- Whether there is conflict between the parents, and if so, who/what is the source of it.
- Whether one parent is creating conflict by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means.
Incidentally, parental conflict alone will not prevent an order from being made; instead, the court must look at the frequency of that conflict, and how it affects the child’s well-being.
Finally, one parent cannot create a problem with the other parent and then claim sole custody on the basis of a lack of cooperation or communication. This is especially true where both parents are caring and competent, but one of them has been primarily responsible for the acrimony and difficulties between them.
These principles are discussed in the following recent Ontario decision: