Getting Joint Custody in Divorce - Real Cases in Ontario Court

Over the last years there had been a new trend in Ontario, in a divorce law, for family courts to order joint custody in divorce. Some people think parenting skills of the parties may be improved with a joint custody in divorce. The recent decision of the Ontario Court of Appeal in the case of Kaplanis v. Kaplanis, has tried to put this trend into perspective.

In this decision, the spouses were married in 1998 and divorced in January 2002. They had a daughter, she was born in October 2001. At trial, the father requested joint custody in divorce and the mother opposed this, insisting on the fact that the parties communication without screaming at each other is impossible. The trial judge awarded the parties joint custody in divorce and the mother appealed this order. The appeal court set aside the order of joint custody in divorce and the mother was awarded a sole custody.

The Appeal Court held that, for an award of joint custody to be awarded, there must be an evidence that shows, that despite the parent’s own strong conflict with each other, they can and have cooperated and communicated in appropriate way with each other. In this case there was evidence to the contrary, there was no custody expert evidence to help the trial judge decide how a joint custody in divorce order would advance the child’s psychological and emotional needs and the child was too young to explain her own wishes.

Nearly the same time this case was finished, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court approved the trial judge’s order of joint custody in divorce. The trial judge had the benefit of hearing the evidence of the Children’s Lawyer who represented the children’s wishes and who recommended joint custody in divorce in this case. The trial judge heard evidence from third parties with respect to cooperation and normal communication between the parties. The trial judge also examined the history of co-parenting during the marriage and that despite their conflict, the parties could communicate effectively with each other and placed the wishes of their children upon their own if required.

So for now, in Ontario joint custody in divorce cases, it would be that the courts will now be looking more closely for evidence from third party and custody expert witnesses, which would demonstrate that the parties can and have cooperated and communicated in appropriate way and have been able to put their own differences and conflict aside, for the benefit of the children. If there was no proofs of cooperation and good communication between the parents will greatly limit the chance of a joint custody in divorce decision. The supposition that the awarding of joint custody will improve the parenting skills of the parties, will not be a sufficient reason to award joint custody in divorce, if there is no good cooperation and communication between parents.