Parenting Time & Decision Making

Are You in a High-Conflict Custody Case? Court May Side-Step Declaring a “Winner”

Written by Russell Alexander / (905) 655-6335

Are You in a High-Conflict Custody Case? Court May Side-Step Declaring a “Winner”

Recently we explained that – perhaps surprisingly – under Canadian Family law the courts are not obliged to make a formal order deciding which parent gets custody. Indeed, it may see fit not to make one, with the outcome being referred to as “No order” on custody.  This option is most frequently used in high-conflict cases where the parents simply cannot get along, and avoids declaring a “winner” and a “loser” on the delicate issue of custody.

A case called Campbell v. Campbell is a good example of this.  There, the court ruled that neither joint custody nor sole custody was in the child’s best interests, and that “No order” was appropriate.  In its place, a parallel parenting arrangement was the best solution in all the circumstances.

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The parents had been married in 2009, had a daughter named Chloe in 2013, and separated that same year. The girl was now in the mother’s care, with scheduled access by the father. The court described what happened next, and why the matter needed to be resolved imminently:

During the period of separation, the trial, and following the trial, the parties have continued to argue about parenting time with Chloe and about all issues related to Chloe. There are at least 15 volumes of continuing record and motions continued to be brought after the trial was concluded to deal with the issue of parenting time.

Everyone involved in this matter has acknowledged that this is a high conflict case. The conflict began during the marriage and continued throughout the separation, throughout the trial and afterward. Before the trial, there were approximately 18 motions brought by [the father] and 7 motions brought by the mother. Motions continued to be brought even after the parties were ordered to bring no further motions without leave. … The court mentions this because ending the conflict is necessary for Chloe’s sake. The court’s order regarding parenting of Chloe has been crafted in an effort to end the need for the parents to communicate very often and to provide them with equal time with Chloe such that arguments become unnecessary. Without such an order, the court is very concerned that the conflict will continue indefinitely between the parties.

The mother asked for sole custody; the father wanted either joint custody with equal parenting time or else “No order” for custody, to avoid giving one parent power over the other.

The court considered these requests.  First, it confirmed the principle that neither the provincial nor federal Family legislation requires a trial judge to make an order for custody, and that an alternative choice was to adopt the proposed “parenting plan” without awarding custody to either parent.

Although this solution was not appropriate in every case, the resulting shift in focus to a parallel parenting arrangement was especially useful in those high-conflict cases where one parent is unjustifiably excluding the other from the children’s lives, cannot be trusted to exercise sole custody responsibly, or where both parents are incompatible with one another but agree on major issues and are independently capable of parenting.  The court added:  “Parallel parenting is usually reserved for those cases where neither sole custody nor cooperative joint custody, will meet the best interests of the child.”

Applying that threshold here, the court considered the evidence of the relationship between these parents, stating:

It is abundantly clear to the court that a joint custody order will not work in this case. However, the court is also not convinced that a sole custody order will be in Chloe’s best interests either. The court is less concerned about the “winner/loser syndrome” in this case than it is about the fact that after almost four years, these parents are not yet in a place where they are able to be civil and cooperate with one another for the benefit of their child. …

The parents have been embroiled in litigation for more than 3 years. Their daughter has just celebrated her fourth birthday. As such, conflict over her has been ongoing for most of her life. Their court file is contained in seven banker’s boxes. There are at least 15 volumes of continuing record. During the time of the litigation, several judges have advised the parents that the acrimony must end, but to no avail.

While noting that both parents clearly loved Chloe, the court said:

… Somehow, Chloe has been insulated from the conflict to date, but as she grows older she will come to realize that her parents detest one another. As she loves them both, this realization will cause confusion, stress, and hurt to Chloe. The court believes that if the conflict continues, the parents will eventually involve Chloe in the disputes, making her life miserable. This potentially will put Chloe in the position of choosing between her parents and acting as a go-between for them.

… Individually, each of them is able to act as a loving, caring, positive parent to the child, so long as they do not need to consult one another or share decision making, something they have been unable to do. The order must also ensure that neither parent’s relationship with Chloe is marginalized or threatened in any way. Therefore the court must make an order that protects Chloe’s relationship with each of her parents, provides for sensible decision making for Chloe, but does not require much if any communication or cooperation between the parents. Such an order can only be accomplished with a parallel parenting order.

In making such an order, the court may order “divided parallel parenting”, where each party is given separate, defined areas of parental decision making independent of the other, or “full parallel parenting” where both parents make major decisions respecting the child in all areas when the child is with them without the consent of the other.

… The purpose of this order is to de-escalate the conflict. Both parents will have equal time with Chloe. Both parents will have equal vacation time with Chloe. Both parents will be able to make decisions for Chloe when she is in their care.

For the full text of the decisions, see:

Campbell v Campbell, 2017 ONSC 3787 (CanLII)

M v. F., 2015 ONCA 277 (CanLII)

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About the author

Russell Alexander

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