Joint_Custody_in_Divorce by thetruste


Joint Custody in Divorce

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Criteria Courts consider in awards of joint custody

joint custody, divorce, family, law, lawyer, children, Toronto, Markham

Article Body:
There had been a growing trend, in Ontario, in family and divorce law,
over the last few years, for family courts to order joint custody of
children. The hope, by some, was that the parenting skills of the parties
could be improved with awards of joint custody. The recent Ontario Court
of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend
into perspective.

In this decision, the parties were married in 1998 and separated in
January 2002. The parties had a daughter who was born in October 2001. At
trial, the father requested joint custody and the mother opposed the
application, stating that the parties could not communicate without
screaming at each other. The trial judge granted the parties joint
custody and the mother appealed the order. The appeal court set aside the
order of joint custody and the mother was granted sole custody.

The Appeal Court held that, for an award of joint custody to be granted,
there must be some evidence that demonstrates, that despite the parent’s
own strong conflict with each other, the parties can and have cooperated
and communicated appropriately with one another. In this case there was
evidence to the contrary, there was no expert evidence to help the trial
judge determine how a joint custody order would advance the child’s
emotional and psychological needs and the child was too young to
communicate her own wishes.

Approximately the same time this case was decided, the Ontario Court of
Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court
upheld the trial judge’s order of joint custody. In this case the trial
judge had the benefit of hearing the evidence of the Children’s Lawyer
who presented the children’s wishes and who recommended joint custody. It
was held that the trial judge had heard evidence from third parties with
respect to cooperation and appropriate communication between the parties.
The trial judge also looked at the history of co-parenting during the
marriage and that despite their intense conflict, the parties could and
had effectively communicated with each other and placed the interests of
their children ahead their own, when required.

To summarize, in Ontario joint custody cases, it would appear that the
courts will now be looking more closely for evidence from third party and
expert witnesses, which can demonstrate that the parties can and have
cooperated and communicated appropriately and have been able to put aside
their own differences and conflict, for the benefit of the children. The
lack of historical cooperation and appropriate communication between the
parties will greatly limit the success of a joint custody application.
The assumption by some, that the granting of joint custody will improve
the parenting skills of the parties, will not be a sufficient reason on
it’s own to grant joint custody, in the absence of existing good
cooperation and communication between the parties.

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