Sunday, January 11, 2009

Supreme Court of Canada on joint custody

"...A corollary of the acceptance of neutral parenting roles is the notion that children after divorce need to maintain contact with both parents. It is now widely assumed to be self‑evident in the child's best interests to ensure the non‑custodial parent's involvement in the life of the child. One result of these changes has been the emergence of joint custody awards which are predicated explicitly on equality of parental responsibilities and the belief that children's interests are served by maximizing the involvement of both parents in decisions concerning the child.

Unlike in other jurisdictions, the Act contains no presumption in favour of joint custody. Nor have Canadian courts generally accepted the view that joint custody is to be preferred in judicial orders as to custody and access. Beside the fact that the term "joint custody" is a misnomer (see C. L'Heureux‑DubĂ©, "La garde conjointe, concept acceptable ou non?" (1979), 39 R. du B. 835), courts have demonstrated a strong hesitation to making joint custody orders, since in those custody disputes which end up before the courts, the animosity between parents does not generally favour such dispositions. Thorson J.A. observed in Kruger v. Kruger, supra, at p. 678 that:

'Above all, [joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, or their own will and in good faith, to make it work.' [Emphasis in original.]

When parents are willing and able to share parenting responsibilities, they usually do so by agreement, which courts generally uphold (Kruger v. Kruger, supra; Baker v. Baker, supra; Keyes v. Gordon 1985 CanLII 123 (NS C.A.), (1985), 45 R.F.L. (2d) 177 (N.S.C.A.); Dussault v. Ladouceur, supra; Droit de la famille -‑ 316, [1986] R.D.F. 651 (Que. C.A.)).

But the reality of divorce and the circumstances of the parties cannot easily be dismissed. When implementing the objectives of the Act, whether considering joint custody or fashioning access orders, courts, in my view, must be conscious of the gap between the ideals of shared parenting and the social reality of custody and childcare decisions.

This brings us to the heart of this case, a consideration of the nature of access...."

(Me: for another day.)

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