Parenting Time & Decision Making

Court Declines to “Declare a Winner” in the Parents’ Competition Over Child

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Written by Russell Alexander / (905) 655-6335

Court Declines to “Declare a Winner” in the Parents’ Competition Over Child

In Ascani v Robert the court introduced its ruling on custody this way:

Vanessa is a happy healthy child who has the benefit of two cultures: her father’s family from Haiti and her mother’s family from Nicaragua. She has exposure to French in her father’s residence and Spanish while in her mother’s care. She has a large extended group of family members including grandparents, aunts and uncles and a circle of friends and children who all love her. She is doing very well at school and is involved in a number of organized activities including gymnastics, soccer and swimming. She also enjoys skiing, biking, going to the cottage, travelling, dancing, gardening, baking and playing in parks.

However, Vanessa’s world is scarred by ongoing confrontation and conflict between her parents. The parents have ongoing difficulties in communicating and they have been unable to agree on a number of issues including what school Vanessa is to attend and when and where the exchange of access is to take place. The parties recognize that they are involved in a high conflict matter and each blames the other for the discord.

Both parties agree that the current schedule in which Vanessa has six transitions during a two‑week period is not in her best interests.

Against this background the court was asked (among numerous other things) to make a ruling on what custody order should be made, in order to serve the child’s best interests.

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The court recounted that the child’s mother and father first met in a bar in in 2008.  They started living together – and separated for the first time – that same year.  The child was born the following year, but the parents continued to have and on-again-off-again relationship throughout their time together.

Since separation, the father had been living with a new woman, with whom he had a new baby.   This fueled the acrimony with between the parents even further:  At one point the father advised the mother that the new girlfriend would be babysitting the daughter, rather than send her to the daycare that the mother had chosen; the mother insisted on daycare instead. There were also many disputes over pick-up arrangements and minor issues.  Regardless of the topic, the parents were completely unwilling or unable to communicate and resolve their differences effectively.

This being the case, the mother asked the court for an order granting her sole custody – and full decision-making authority – with specified access to the father.  She claimed that in light of their turbulent relationship and parenting history, joint decision-making would be out of the question.

While the father agreed that joint custody was unworkable, he wanted equal parenting with a parallel parenting regime, featuring week on/week off access.

The court first reviewed the customary considerations relating to the best interests of the child.  It concluded that both parents were equally involved and equally responsive to their daughter’s needs, but that both failed in their ability to provide the proper environment for their child to flourish.  As the court put it, “I find both parents are equally responsible for the hostility that exists” between them, and that “both parties are in a tug of war when there is a disagreement and when the other refuses to bend. Each party appears to dig their heels in the sand and refuses to “give an inch”.

With this in mind, the court began its fact-specific assessment this way:

The Court must determine how future major decisions for Vanessa are to be made. There is currently no custody order and the Court notes that a sole custody order can empower a parent. On the other hand a joint custody requires some degree of cooperation between the parties, which does not exist here.

It is in Vanessa’s best interests that both parents continue to play a significant role in her life and hence a parenting regime, whereby each parent has authority in determining major issues, will prevent the marginalization of the other parent and their values.

The evidence summarized below demonstrates the parties’ constant struggle with each other and competition for control of the other parent and of Vanessa’s life.

It is not in Vanessa’s best interests that the Court decides a winner of this competition. Rather the Court must draw some lines for the parties to be able to have a meaningful role to play in Vanessa’s life and avoid the diminishment of either parent’s role in her life. This can be done by the Court carving out a parallel parenting regime.

The court made the following specific ruling:

Therefore, it is not in Vanessa’s best interests that either parent be empowered with sole decision‑making power. There needs to be a balance of power that neutralizes the parties and does not permit either parent to have the upper hand. With sole custody, there is a potential for one party to usurp the role: impacting Vanessa’s life, and possibly marginalizing the other parent.

The challenge is in how to structure the decision‑making process in a manner that both parents can remain involved and I do so below.

The court set out an extensive, meticulously-detailed order setting out the myriad arrangements and decisions that were to be made for the child, all in the context of a week on/week off schedule.

For the full text of the decision, see:

Ascani v Robert, 2015 ONSC 4585

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About the author

Russell Alexander

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