Sunday, January 11, 2009

words on joint cutody from the O.C.A.

A good remedy for a judge's unilateral and unthought through order: all too common these days especially in family law:

"...[9] Family law cases are, by their nature, fact-based and discretionary. It is unnecessary to address this court’s prior jurisprudence regarding the issue of joint custody to resolve the issue of custody in this appeal.

[10] As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be “fit” did not mean that it was in the best interests of the child for a joint custody order to be made. The evidence before the trial judge should have revealed what bonds the child had with each of her parents and their ability to parent the child. In addition to detailing the mother’s current arrangements respecting the care of the child, the evidence should also have indicated what practical plan to care for the child the father proposed to make when he had the child with him and the benefits to the child of such an arrangement. The trial judge had no evidence to this effect. Indeed, as the trial judge acknowledged at the time she made her order, the child had never spent an overnight with the father alone.

11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[12] Insofar as the ability of the parties to set aside their personal differences and to work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration for the trial judge and any reviewing court...

[13] While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes. Here, we are dealing with a very young child, incapable of communicating her wishes. When the child is too young to communicate her wishes, expert evidence may be necessary to enable a judge to determine how the child’s psychological and emotional needs would be advanced by the proposed custody order or parenting plan. Ideally, judges conducting a pre‑trial would canvass the issue with the parties to alert them to the need to bring forward evidence of how the child’s needs will be met by the proposed parenting plan. The assistance of the Children’s Lawyer pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c.‑43, could also be requested. In this case the trial judge did not have the benefit of expert evidence or input from the Children’s Lawyer respecting the child.

[14] It may certainly be desirable for parents to take counseling on how to better parent their child and to hire a counselor or parenting coach to resolve disputes. The order provided by the trial judge was, however, problematic. The legislation does not specifically authorize the making of an order for parental counselling and, while some trial judges have held the court has inherent jurisdiction to make a counselling order, carrying out the order requires the co-operation of the parents. There was no evidence that the parties would be able to agree on whom to appoint. There was no agreed process for the appointment of a counselor in the event that they could not agree who should be their counselor. Nor was there any evidence that they were willing to submit their disputes to be decided by a counselor outside the court process envisaged under the Divorce Act and without recourse to it.

[15] Having regard to the above factors, the trial judge erred in making an order for joint custody of the child. She further erred in making the orders she did that the parties attend counseling and appoint a counselor to resolve their disputes. In the absence of any request for sole custody by the father and detailed parenting plan put forward by him, the court’s only other choice was to make an order for sole custody of the child to the mother. Accordingly, I would, as indicated, allow the appeal and order that the mother have sole custody of the child. The extent of the father’s involvement in the life of the child is a matter that remains to be addressed by way of a new trial on the issue of access, hopefully with the assistance of the Children’s Lawyer. I would therefore order a new trial on the issue of the parties’ access… "

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