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In a previous blog post, we explored the meaning of joint custody and reviewed some scenarios in which it would be the appropriate custodial situation for a child.  Joint custody gives both parents full decision-making authority and responsibility in all areas respecting the child.  Major decisions regarding the child’s health, education, and well-being are made together.  We explained that when considering whether joint custody is in the best interests of the child, effective communication between the parties is key:

Effective Communication and Cooperation.  For a joint custody arrangement to be successful, you must be able to communicate and cooperate effectively with your ex.  You don’t have to like your ex, and you don’t need to have constant communication with him or her (imagine having to text updates every day?!), but you do need to be able to make long-term decisions together, and be able to put the best interests of your child ahead of any personal feelings of conflict that may linger;

What if Parents Cannot Communicate Effectively and/or Cooperate with Each Other?

Since effective and timely co-decision-making is such a critical factor in making a joint custody situation successful for a child, parents who are having a difficult time communicating may agree to a sole custody arrangement, or risk having a court make such an order.  A court may even change an order from joint to sole custody if warranted by the parties’ demonstrated lack of cooperation (see Newman v. Nicholson example below).

Sole Custody is an arrangement in which one parent has physical and legal custody of a child. The parent with sole custody can make all of the important decisions in the child’s life.  The non-custodial parent usually has ‘access’ to the child, meaning that they have the right to some share of physical time with him or her. The non-custodial parent may also have the right to make inquiries and to be given information regarding the health, education, and welfare of the child.

In Newman v. Nicholson, a 2016 decision of the Ontario Superior Court of Justice, the Court varied a final order of joint custody to an order of sole custody in favour of the mother.

In making its decision, the Court considered what would be in the child’s best interests in accordance with the factors set out in s. 24 of the Children’s Law Reform Act.  The Court was also guided by the Ontario Court of Appeal’s decision in Kaplanis v. Kaplainis, in which the Court articulated issues of communication to be considered when assessing the propriety of a joint custody arrangement:

  1.  There must be evidence of historical communication between the parents and appropriate communication between them;
  2.  [Joint custody] can’t be ordered in the hope that it will improve their communication;
  3.  Just because both parents are fit does not mean that joint custody should be ordered;
  4.  The fact that one parent professes an inability to communicate does not preclude an order for joint custody;
  5.  No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis;
  6.  The younger the child, the more important communication is.

The Court in Newman decided that the parties’ child, Kai, should be placed in his mother’s custody solely because the parties did not possess the minimum ability to communicate in order to make major decisions for Kai.

The factors that informed the Court’s decision included:

  • Kai lived primarily with his mother;
  • Kai’s mother had played the lead role with respect to his schooling, medical needs, psycho-education assessment, activities registration & scheduling;
  • Kai’s time with his father was his “down time” (video games, etc.);
  • the communication between the parents was abrasive and contemptuous; there was no evidence of meaningful and fruitful exchange of information;
  • the father deliberately ignored the emails from the mother regarding Kai, and admitted he was tardy at responding to emails; and
  • the father did not demonstrate a willingness to work with the mother to make decisions together;

Lessons Learned

The outcome in Newman v. Nicholson is another example of how important it is for parents to have a post-separation and post-divorce strategy for effective and meaningful communication regarding their children if they wish to ensure the success of a joint custody arrangement.

For advice on issues of custody or any other family law matter, contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.


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