Parenting Time & Decision Making

Courts In Favour of “No Order” on Custody

parent and child holding hands
Written by Russell Alexander / (905) 655-6335

We’ve talked recently about the surprising fact that under Canadian Family law, courts are not obliged or required to make a custody order when parents come before them in a custody battle.

Rather, the court may find that – based always on the best interests of the child – it should decline to make a specific order allocating sole or joint custody, in favour of what is called “No Order” on custody.

This does not mean that the child’s needs go unattended to.  It simply means that the court has concluded that it is not beneficial (or may even be potentially harmful) to declare a custody “winner” and “loser” in the case.  Rather, a customized option in the form of a Parenting Plan must be imposed instead, for the good of all involved. This solution is typically used by courts in high-conflict cases where the parents simply cannot see eye-to-eye, even on issues relating to the wellbeing of their own child.

In recent years, there has been an upsurge in the number of cases that result in “No Order” as to custody. We already covered the case of Campbell v. Campbell which involved parents who had spent more than 5 years fighting over the allocation of parenting time for their daughter and filed at least 15 volumes of court materials in the course of doing so. (In order to address all the issues that remained between this former couple, the court had to write an epic-sized judgment spanning more than 300 paragraphs).

The decision in Shawyer v. Shawyer is also noteworthy. There, the court began by giving its stamp of approval to prior judgments in which courts openly avoided granting custody to one parent over the objections of another, in order to avoid the “winner/loser syndrome” that such an order can foster. The court in Shawyer then went on to assign each parent certain duties and obligations in a detailed Parenting Plan.  The court made some important observations about the practicality of this solution, and the lack of mathematical precision that such orders engender:

An assignment of parental obligations and duties to each party will address the allegation of power imbalance between them. However, in the exercise of those responsibilities as awarded herein, neither parent is or will be entitled to act in isolation without notice to the other parent.

Further, although a 50/50 division in the management of the children’s time outside of school may be perceived as in the best interests of the parents, there is no probative evidence before me that such a mathematical parsing of time is or would consistently be in the best interests of either or both of these children over the long term.

The overarching concern of this court is to always ensure that the assignment of hours or days that the children are to spend in the care and control of either parent does (a) not interfere with the ongoing development of the relationship between each child and the other parent; and, (b) does not interfere with their academic and social development at school. I decline to interfere with stability at school to support or ensure a 50/50 division of time with each parent. Therefore, unless there is evidence from the school teachers that these children are able to withstand the stress and pressure of changing home environments, parenting styles and structures every week while simultaneously studying and attempting to achieve steady progress at school, I am loathe to accede to the Respondent’s suggestion as to time-sharing. A child-centred continuum in the timeline to which both parents must ascribe is essential.

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These rulings involving Parenting Plans and “No Order” on custody are a welcome development in Family law.  Not merely because they can be a good solution to a bad family scenario involving vulnerable children, and parents who need the court’s intervention.

They are also welcomed because they demonstrate the Ontario courts’ willingness to collectively “roll up their sleeves” and really get involved in customizing a workable parenting model, and one that will optimally serve the child’s needs and interests.

For the full text of the decisions, see:

Campbell v Campbell, 2017 ONSC 3787 

Shawyer v Shawyer, 2015 ONSC 3899

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About the author

Russell Alexander

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