Quarreling parents can make joint decision making difficult. The question is sole custody vs joint custody for warring parents. Whether sole custody or joint custody is awarded can be a tough decision. On the one hand, Courts can’t reward a parent with sole custody because they have refused to cooperate with the other parent. On the other hand, if parents can’t get along, there is no way that joint decision making will be in the best interests of the child. A Court in Ottawa recently addressed this exact issue.
I recently blogged on this decision in the context of imputing income to an underemployed parent. The mother and father never married. They were together from 2006 to 2008. They had a child together in 2008 and then split up. The mother is 47 years old and works for the government, while the father is 48 years old and works as a chef. They have been involved in a legal battle since 2011.
My Ex-Spouse Doesn’t Show Up For Access Visits
The mother says the father is irresponsible and repeatedly shows up late, or not at all. This causes uncertainty and is difficult on the child. The mother also says that the father deliberately disregards pick-up and drop-off times to create havoc.
The mother also testified that the father did not want to get involved in medical issues. Specifically, the child was diagnosed with ADHD and other behavioural issues, but the father does not agree with any diagnosis. While he disagrees with the diagnosis, the father has not spoken to any of the medical professionals.
My Ex-Spouse Won’t Communicate
Not surprisingly, the father disagrees with the mother’s evidence. He had his licence suspended due to his financial inability to pay fines. He admits that he is late on occasion, as he must take the bus to visit his son and at times, public transit is not on schedule. But he also adds there were many times when he was at the meeting point, only to receive a text message from the mother who cancelled his access.
The Judge reviewed one incident from March break 2019, which was very telling. The father had access visits scheduled on both weekends of the March break. Without telling the father, the mother took the child away for the week and then texted the father that he could visit the following Sunday when they returned. On the Sunday, the mother texted to say they would be back at 1pm, but they never arrived. The mother said she stopped to go shopping for shoes for the child.
The Judge also found on occasion that the mother restricted access because the father was behind on child support payments. Child support and access must never be considered together, though that is a topic for another day.
Quarreling Parents and Joint Decision Making
The question here for the Court was to determine if sole custody or joint custody was in the best interests of the child. The mother sought sole custody, while the father sought joint custody. While the parents views are a consideration, the Judge must decide on the best interests of the child.
During this trial, hundreds of text messages relating to access was entered as evidence. The Judge comments that the content of these messages was “rarely productive or pleasant”. The communication would often start with the father inquiring about access and the mother being dismissive or not replying at all.
The Judge found that based on years of extreme animosity, the parents were past the point of being expected to work cooperatively to make decisions, and added: “their pattern of discourse is toxic and too well entrenched to expect genuine change”, even for the sake of the child.
The Judge reviewed the law in Ontario and quoted an Ontario Court of Appeal decision. “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 an order of joint custody.”
What is the Difference Between Custody and Access
To provide some additional context on this decision, the Judge was only concerned with custody at this stage and not access. Custody is the ability to make decisions for the child, such as where the child will go to school, what religion to practice or where to live. Access is a separate issue and it relates simply to the time each parent spends with the child.
Joint Custody vs Sole Custody When the Parents Can’t Communicate
This was a difficult decision. On the one hand, the evidence established that the father was not interested in the medical needs of his child, while also being unreliable with access. On the other hand, the mother often refused to communicate with the father and often withheld access.
Ultimately, the Judge determined the appropriate decision was to award sole custody to the mother. While granting sole custody, the mother was required to inform the father of all major decisions and receive his views in writing prior to making the decision.
This was not a reward for the mother, rather it was the only reasonable outcome since the parents simply couldn’t communicate.
I am Seeking Joint Custody or I am Seeking Sole Custody
Sole custody vs joint custody for warring parents. The one clear theme with all lengthy litigation is that often times parents simply refuse to cooperate. While emotion can dictate actions, this emotion doesn’t help the parent seeking a specific custody order.
If you are seeking sole custody or joint custody, the most important thing is to have respectful communication with the other parent. While text messaging can be convenient, it often provides for a loss of translation. Email allows for more thorough communication and needs to be considered.
It is easy to find fault with the other parent. Prior to making an application for sole custody or joint custody, you need to do some serious self-reflection. What will the other parent say? Looking at it from the perspective of the other parent will often assist in ensuring your actions are respectful and positive.
The only thing the Judge will consider is the best interests of the child. In this light, prior to going to Court, ensure your actions are deserving of the outcome you are seeking.
If you are seeking custody of your child, consider obtaining some legal advice. Contact Hearty Law for a brief consultation and determine some options that you have. Or email toronto@heartylaw.ca or ottawa@heartylaw.ca.
Hearty Law serves Toronto, Ottawa and surrounding communities.