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The court recently considered when it might be appropriate to grant sole custody to one party over the other.


The Parties’ Story

The parties were married for three years before they separated in 2010. They had two children, born in 2008 and 2010.

In 2012, the parties executed a separation agreement, in which they agreed to joint custody of the children. The separation agreement also provided the father with extensive and liberal time sharing with the children.

The parties proceeded to trial. By that point, the father’s time sharing had been reduced to supervised access because of misconduct during access visits (for example, discussing adult issues with the children). The father then decided that he was no longer willing to see the children at the access centre. As a result, neither child had seen the father since June 23, 2017.

The mother sought sole custody of the children.


The court explained that joint custody may be ordered in certain circumstances. It stated:

Joint custody is generally ordered where the parties are able to communicate effectively about their children so that they can effectively co-parent without conflict which is harmful to the children. If parents can communicate, or can give in gracefully where there is a disagreement, then joint custody is both laudable and desirable; it keeps both parents involved in their children’s lives, and the children are well aware of this and appreciate the involvement of both of their parents whom they love.

The court indicated that, on the other hand, an order for joint custody might be contrary to the best interests of the children where the parents cannot communicate with one another, agree on major issues, or have fundamentally different parenting philosophies.

If an order for joint custody is not appropriate, it is possible that a court will make an order for sole custody (that is, an order where one parent is removed from any major role in parenting his or her children).


The Court’s Decision

The trial judge decided to grant the mother sole custody and decision making in respect of the children. The father was not awarded any access.

In coming to this decision, the court focused on the fact that there had been serious parental conflict between the parties from the beginning and that the parties were unable to work cooperatively in parenting their children. The court remarked that the assessor put the responsibility for the parties’ inability to communicate onto the father, and further, that the assessor indicated he had never seen such disregard for the rules and intent of supervised access as he saw with the father.

In describing the father’s poor behaviour, the court pointed to the fact that the father had continued to provide dairy products to one of the children, despite court orders and despite the fact that the child’s physician had, since at least infancy, recommended that the child not receive any dairy or lactose-based products. The court also noted that the father had delayed in providing his consent to the children participating in therapy, and had refused to execute travel consents or provide the children’s passports.

The court found that the parties’ disagreements had harmed the children, and that the situation did not bode well for an order for joint custody. It concluded that:

The conflict between these parties is deep seated and perverse.  It underlies all of the interactions between the parties and, by extension, contact with the children.  Usually, it is difficult to determine the cause of toxic inter-personal relationships.  However, the evidence is overwhelming that the cause of these parties’ communications issues lies with [the father].  His stubbornness and inability to accept any direction from [the mother] or the children’s physician, as evidenced by the “dairy wars” noted above, makes it impossible for these parties to co-parent the children without causing them further harm.

In deciding not to award access to the father, the court noted that the access visits had been harmful to the children. Among other things, the court remarked that the father had used every opportunity to undermine the mother’s parenting, and had also been sporadic and inconsistent in his exercise of the access. It concluded that the only available option that could address the best interests of the children and avoid further harm to them was to order that the father receive no access at all.

Overall, for the reasons outlined above, the court determined that it was not in the best interests of the children for it to confirm the joint custody provisions of the separation agreement.


Lessons Learned

Communication between parents is key. If a court concludes that two parties are unable to work together in a collaborative manner to meet the needs of their children, there is little chance that it will make an order for joint custody.

If this case teaches us anything, it’s that a separation or divorce is best handled with the assistance of a knowledgeable family law lawyer. At Gelman & Associates, our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (844) 769-0737 or 1-844-769-0737, or contact us online for an initial consultation.

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