In Family Law, the term “custody” refers to parental decision-making and authority respecting a child. In 1993, the Supreme Court of Canada stated that “…the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child.” (Young v. Young)
There are several types of custody arrangements that separated or divorced parents can enter into: Sole, Joint, Shared, Parallel, and Split.
Let’s take a closer look at joint custody in Ontario.
Joint Custody gives both parents full decision-making authority and responsibility in all areas respecting the child. Essentially what that means is that major decisions regarding the child’s health, education, and well-being are made together. Small, every day decisions, such as the decision to give a child medicine for a cold, or figuring out his or her Grade 6 speech topic, do not require consultation with the other parent.
Many people erroneously believe that joint custody means that the child spends equal time with both parents. It does not. The amount of time the child spends at their mother’s house versus their father’s house is a separate issue.
In what circumstances would joint custody be a good idea?
- 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 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; or
- Balance of Power. In a 2013 decision of the Ontario Superior Court of Justice (Hoffman v. Hoffman), the Court noted that joint custody may be appropriate to preserve the balance of power between the parties, especially in a case where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties.
When should joint custody be off the table?
- Poor Communication and Cooperation. It should go without saying that if you and your ex have never had the ability to cooperate or communicate effectively, or if one parent is unable to put the needs of the child before his or her own, joint custody is certainly not the right arrangement for you or your child; or
- Abusive and Controlling Ex. Abusers are generally not cooperative and may seek joint custody to maintain control over you as the arrangement would require his or her agreement to all parenting plans. Ensure that your lawyer knows about the abuse and control so that you can fight for a custody arrangement that does not require cooperation with your ex.
Child custody is a complex issue. You want the best for your child, especially in the context of a split from his or her other parent, but it may not be easy to co-parent post-separation. Be honest with yourself about your ability to cooperate and communicate effectively with your ex, and think carefully about issues such as power imbalances and abusive and/or controlling behaviour before agreeing to a joint custody arrangement.
For answers to all your questions about child custody or any other family law issue, call Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.