NOTICE

  1. The Outline of Law below was written several years before the introduction of the new Family Law Act in British Columbia in November 2013. All the cases cited below were decided pursuant to the former Family Relations Act.
  1. The Divorce Act remains the same.
  1. Case law – decisions handed down by judges – have advanced both shared decision making and time sharing of children since this brief was written.
  1. However, this brief remains an important reference for the development of these principles. A knowledge of its contents will greatly improve an understanding of the pillars upon which present day decisions are based.

 

OUTLINE OF LAW
RE: Joint Custody and Shared Parenting where Communications are difficult.
Carey Linde

STATUTORY PROVISIONS

1. Section 16 (4) of the Divorce Act (1985) provides that:

“The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.”

2. Section 16 (8) of the Divorce Act (1985) provides that:

“In making an order under this section, the court shall take into consideration only the best interest of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”

3. Section 16 (10) of the Divorce Act (1985) provides that:

“In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

4. Section 24 (1) of the Family Relations Act provides that:

“When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs and circumstances:

(a) the health and emotional well being of the child including any special needs for care and treatment;

(b) if appropriate, the views of the child;

(c) the love, affection and similar ties that exist between the child and other persons;

(d) education and training for the child;

(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

5. Sections 24 (3) and (4) of the Family Relations Act provide that:

“(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2).”

6. Section 35 (1) of the Family Relations Act provides that:

“Subject to Part 3, a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.”

JURISPRUDENCE

7. The only test for resolving custody disputes is in the best interest of the child, assessed from a child-centered perspective.

Young v. Young (1993), 160, N.R. 1 at 52 (S.C.C.) [Tab ___]

8. The “parental preferences” or “rights of the parties should play no role in the court’s decision about custody.

Young, supra at 19 [Tab___]

9. That there is conflict between parents is of itself not a sufficient basis for assuming that the child’s best interests will not be served.

Young, supra at 34 [Tab ___]

10. The “courts must be directed to create or support the conditions which are most conducive to the flourishing of the child.”

Young, supra at 102 [Tab __]

11. “The concept of joint custody is of relatively recent origin”: Kamimura v. Squibb (1988) 13 R.F.L. (3d) 31 at 39 (B.C.S.C., per Hinds J., as he then was. Courts began by thinking that joint custody should not be ordered unless there was an agreement of joint custody between the parents. Huddart Co. Ct.J.’s (as she then was) comments in Anson v. Anson (1978), 10 B.C.L.R. (2d) 357 at 367 (Co. Ct.) typify this thinking: “Because [joint custody] involves such an equal sharing, the order is rarely made without some indication that the parents can co-operate. Some cases go so far as to state that there ought to be an agreement prior to making a joint custody order…”

12. The law on when a court should impose joint custody on parents was in a state of flux
throughout the eighties. Now there is an evolving judicial trend that when joint custody is found to be in the child’s best interest, joint custody must prevail, even though the parents have not agreed to it. In Laba v. Laba (1992), 98 D.L.R. (4th) (B.C.S.C.), Allan J., in imposing joint custody, contrary to the wishes of both parents, noted the “definite judicial trend away form the earlier requirement that both parents must agree to joint custody.”

13. Wilson J.A., as she then was, dissented in Kruger v. Kruger (1979) 11 R.F.L. (2nd) 52
(Ont. C.A.). In her view, the fact that the parties had been in court over custody did not indicate that joint custody was inappropriate: “Most mature adults, after the initial trauma has worn off, are able to overcome the hostility attendant on the dissolution of their marriages or at the very least are capable of subserving it to the interest of their children. (p.73) Nor was Wilson J.A. persuaded that an occasional trip to court was too great a price to pay in the child’s best interests: “And what if occasional resort has to be made to the courts when the parents cannot agree on a major matter affecting the child? Is this to be the determinative consideration? It seems to me to be a modest price to pay in order to preserve a child’s confidence in the love of his parents and with it his own sense of security and self-esteem.”

14. Madam Justice Wilson concluded that: “It is true that joint custody was not sought at
trial but I do not think that deprives the court of its power to make an order for joint custody if it is satisfied that such an order is in the child’s best interest.” (p.74) (emphasis in original).

15.Wilson J.A.’s dissent has been regarded favourably by trial judges in British
Columbia. In Kamimura v. Squibb (1988), supra., Hinds J., as he then was, was of the view that ss 16 (4) and (10) of the Divorce Act (1985) had given statutory effect to Wilson J.A.’s dissenting judgment. In Fry v. Silkalns (1993), 47 R.F.L. (3d) 169 (B.C.S.C.), Hood J. considered that “the hard line position of Kruger has to some extent fallen by the wayside.” (p.176) In his view. “there is much to be commended in the dissenting judgment of Wilson J.A., as she then was.”

16. In Tomlin v. Tomlin (1992) 69 B.C.L.R. (2d) 363, Cohen J. reviewed the law on this
question extensively. Cohen J.’s conclusion from this review: “What I take out of the development of the law on this subject is that the courts are no longer reluctant to order joint custody, joint guardianship or a variation on the role of the custodial and non-custodial parents where it is in the best interests of the child or children to do so, notwithstanding disagreement between the parents on the issue of custody.” (p.390)

17. In Woodland v. Ceeco (February 8, 1995), Rossland 1895 (B.C.S.C.), Low J. commented that: “There are cases in which the court has ordered [joint custody] over the objections of one parent. In each case it is a question of whether joint custody is likely to work and is in the best interests of the child.” (p.8) In this case, the Mother sought sole custody while the Father sought joint custody. Low J. found it was an appropriate case for joint custody because, among other reasons: “Interim access, including overnight access, has worked quite well for some time. Despite their mistrust of each other, the parties do communicate.”. “Because of the Defendant’s close relationship with Milana and commitment to her, it is in Milana’s best interest to increase access. With agreement as to joint guardianship and increased access, joint custody is but a short step.”

18. It is submitted that the law should not insist on complete agreement between the parties about what is in their children’s best interest. That would be an unrealistic standard and one which parents who live together do not have to meet.

19. In Young v. Young, (1193) 49 R.F.L. (3d) 117,Madam Justice McLachlin stated that “Conflict between parents, is, in and of itself, not a sufficient basis for assuming that a child’s interests will not be served.”

20. Sopinka, J. in Young v. Young, supra. stated “…conflict between parents on many matters including religion is not uncommon, but in itself cannot be assumed to be harmful unless it produces a prolonged acrimonious atmosphere.”

21. It is submitted that in the case at bar, there was no evidence that any conflict between the Mother and Father was adversely affecting the Child. To the contrary, the Child was described as thriving by the Mother.

22. Hood J. captured the essence of this idea in Fry v. Silkalns, supra. at p. 176: “[Children] do not live in a perfect world when they live with their parents. Why should a perfect world be the test for joint custody?” In Heyman v. Heyman, (1990) 24R.F.L. (3d) 402, for example, Josephson L.J.S.C., as he then was, found that differing views about child rearing was not a sufficient reason to disturb the existing joint custody arrangement.

23. Disagreement and some level of conflict is present between parents in almost all marriages, and, indeed, between parent and children. Clearly some degree of inter-parental and parent-child conflict is compatible with normal development. Children would grow up with a very distorted and unrealistic view of social relations if all conflict was absence.

24. Joint custody should be given a chance, with the child having an opportunity to enjoy the benefits of joint custody. Hood, J. made such an order, commenting that:

25. “I am equally impressed with the abilities of the parties and the close relationship they have each developed with [the child]. I am far less impressed with the evidence suggesting that joint custody would be doomed from the start, and that, accordingly, [the child] should not even have the reasonable chance of enjoying the fruits of a joint custody arrangement, which her parents are capable of developing in time. Upon a consideration of the evidence before me, I have concluded that she should have the opportunity to enjoy those benefits. If, as I say, it simply cannot work for legitimate reasons, [the child] will have lost nothing and will still enjoy the benefits open to her now, were I to award custody to one party with generous access to the other.”

Fry v. Silkalns (1993), 47 R.F.L. (3d) 169 at 177 (B.C.S.C.) [Tab ___]

26. An existing joint custody order or arrangement may be preserved where it is in the best interests of a child even if both parties subsequently seek a sole custody order.

Heyman v. Heyman (1990), 24 R.F.L. (3d) 402 at 411 (B.C.S.C.) [Tab __]
Dorward v. Fisher [10 August 1998, Vancouver F950338] (B.C.S.C.) at page 11 – paragraph 27 [Tab__]

27. The following words of Twaddle J.A. writing for the Manitoba Court of Appeal in Abbot v. Taylor [1986] 4 W.W.R. 751 were cited with approval by Josephson L.J.S.C.:

“I would add, also as a matter of common sense, that the mere expression by one or both parents of an unwillingness to share custody should not preclude an order of joint custody if the court considers such unwillingness to be the manifestation of temporary personal hostility engendered by the trauma of a recent separation. To say otherwise would encourage one parent to avoid the participation of the other in deciding questions as to their child’s future by a mere statement that he or she is unwilling to share the responsibility.”
Heyman, supra at 411 [Tab __]

28. In making a custody order, Hood J. has said that:

“The focus should be on the capabilities of the parents to communicate and to cooperate with respect to the child, to achieve their common parental goals, rather than on mere assertions by one party that the other is incapable of doing so, or other perhaps superfical and selfish differences which no parent truly concerned with the best upkeeping of his or her child would allow to come before or interfere with that goal.”
Fry v. Silkkalns, supra at 175 [Tab __]

29. An order for joint custody, with residency alternating between the parties on a weekly basis, can meet the best interests of a child of the potential negative consequences of moving back and forth are outweighed by the positive benefits of nurturing a strong, consistent relationship with each party.

Dorward v. Fisher, supra at page 12 – paragraph 300 [Tab ___]
P.J.B. v. M.M.B [8 July 1998, Vancouver F950497] (B.C.S.C.) at page 5 paragraph 27 [Tab ___]

30. Where joint custody is the status quo, the court should focus not on the parties’ willingness to cooperate, but on their real capacity to cooperate in determining whether continued cooperation under joint custody is no longer workable.
Taker v. Take (1997), 27 R.F.L. (4th) 86 at 93 (B.C.S.C.) [Tab ___]

31. An order for joint custody will be continued where the evidence indicates that in spite
32. of the difficulties that have existed between the parties, the child is happy and doing well. As noted by Ralph, J.:

“While there may be no onus on the petitioner to satisfy the court that the present joint custody arrangement should end, the court should be satisfied that ending joint custody will be more in the child’s interest than continuing it. The benefits to the child that might come from an order of sole custody should outweigh the risks or losses that might flow from a change in the present position.”

33. In some cases, the best interests of a child can only be met by giving neither party sole custody, with joint custody being the only viable option. Even if the parties show little, if any, signs of communication or cooperation, it will be necessary to consider whether that is a result of issues between the parties themselves, or goes to real differences over the children’s upbringing, including the important issues of education, religious training and health care.

Mbaruk v. Mbaruk (1997), 27 R.F.L. (4th) 146 at 156 (B.C.S.C.) [Tab ___]

34. Parents in intact families are likely to show some difference in their style of caretaking and their disciplining of children. There is no suggestion that this conflict is something a normal child cannot cope with.

35. Normal, healthy children such as the Child in the case at bar, are able to adapt to varying sets of rules and expectations. Children quickly learn that grandparents, day care workers, or teachers may expect rather different standards of behaviour than parents at home.

36. It is submitted that a judge’s decision to not order joint custody must be based on objective evidence. It cannot be based on self-serving statements that joint custody will not work because, for example, the other spouse will be too litigious. One spouse should not be able to sabotage joint custody by making unsubstantiated allegations, or willfully choose to impede communication.

37. There is no evidence that in the time since the parties separated, they have not been able to work out whatever differences they might have had with respect to the Child’s health, education and general overall welfare.

38. Where the questions is whether or not joint custody should be imposed on parents, there must be some evidence, it is submitted, other than the custody dispute itself, that the parents cannot or will not share joint decision-making in the best interests of their children.

39. Mr. Justice Burnyeat in a judgment dated August 8, 1998, in the matter of Dorward v. Fisher (Docket F950338, Vancouver Registry) ordered joint custody and said at page 2:
40. “Each parent asks me to conclude that they are the better parent, that their parenting styles is to be preferred, and that it is the best interests of Jordan that they have permanent custody.”

41. At page 11, His Lordship said “while there may have been inability or unwillingness to cooperate in the past, I have confidence in these parties to co-operate in the future in order that what is in Jordan’s best interests can be undertaken.”

42. Joint custody was ordered in a case where the parents lived in different countries. In Hildinger v. Karroll, unreported judgment dated July 2, 1998 from the Ontario Court, General Division (Court File #24367), McKinnon, J. gave joint custody of a two-year old girl to the parties where the mother lived in Ottawa and the father lived in New York City. At page 3, His Lordship said:

“In my opinion, Nancy Mae should be able to enjoy the full fruits of her parent’s union. This would include knowing the love of her father and the benefits of dual citizenship. Those benefits are in fact the “property” of Nancy Mae and the mother should not unilaterally be able to deprive her of them.”

43. Madam Justice Sinclair Prowse canvassed the law and principles on the particular facts of Northcott v. Northcott, unreported decision of this court dated April 20, 1998 (New Westminster Registry Docket #D040543). In that case, the mother was applying for sole custody and the father was seeking joint custody of a four-year old son and an 11-month old daughter. The mother had been the primary caregiver to the children. Her Ladyship made the following comments in her judgment, with the number before each comment being the number of the paragraph of her judgment where the comment is found:

44. (6) “Because the parties were having difficulty communicating in a meaningful
way, included in various orders I made were orders setting out a mechanism whereby the Parties are to communicate in writing on a regular basis until they both agree that it is no longer necessary to continue with this process as they are able to effectively communicate verbally.”

(8)“With respect to the custody application for reasons which follow there will be
an interim order of joint custody, joint guardianship, the primary residence to be with Mrs. Northcott with specified access to Mr. Northcott.”

(9)“Given that the children are very young (the Parties son is 4 years old and
their daughter is 11 months) and that as a consequence of the children’s relationship with their parents is just developing, it would be in the Children’s best interests to have as much contact and exposure to both parents as is possible. In my view, the best mechanism for this is an order for joint custody.”

(10)“In making this order I am mindful of the fact that the Parties are now and
have for some time been experiencing serious communication problems. Although joint custody orders are thought to be ill-suited to situations in which the parents are having these types of problems, because it would be in the children’s best interests if their parents would learn to communicate in a meaningful way; as far as it would be in the children’s best interests if the parents could jointly parent them; and because there is now mechanism in place to assist the parties to communicate effectively with a minimum of stress, in my view it would be in the children’s best interests to maintain the status quo (meaning joint custody) at least for the next while to ascertain if joint custody is maintainable.”

(13) “With respect to the individual abilities to parent, both presented evidence
from independent sources that they were good parents.”

(14)“Given the evidence of apparently independent people as to testing their
observations in which Mr. Northcott not only acted appropriately with his children, but showed himself to be a caring and loving parent…I have concluded that if true, the incidents in which Mr. Northcott acted inappropriately were the result of a momentary lapse because of the strain that the Parties were under at the time rather than an absence of parental competence or caring.”

(16)“If it is not clear in this judgment, the purpose of this order is to try a
joint custody arrangement to allow the situation between the Parties becoming more stable.”

45. In, the October 8 1998 judgment of the Honourable Madam Justice Saunders (Vancouver Registry, D105481) in Izen v. Izen, Her Ladyship at trial awarded joint custody of the three children. The father had health problems and the mother expressed concerns about his past misuse of his medications. At paragraph 21 of Her Ladyship’s Reasons, she says as follows:

“In this case I am satisfied that both parents are able to provide a good home for each child, and that each child would obtain a sound education and ethical upbringing with either parent. Both parents love their children, and have taken the position in these proceedings in the best interests of the children as they see them. So the question is not whether one parent is not appropriate to care for the child; rather it is which arrangement will be in the best interests of the children. Considering the best interests of each child I have considered the question from the individual perspective, keeping in mind that what is in the best interests of one child also may have secondary value to another child because their relationships with each other will last their lifetimes.”

46. At paragraph 26 in Her Ladyship’s Reasons for Judgment, she says “Mrs. Izen has
urged a sole custody situation, citing the lack of communication between the Parties.
While I accept that communication has not been good this past year, the Parties earlier
agreed to joint custody further change from joint custody to sole custody create a
resentment on the part of the children and upset the equilibrium which had been
established in the family which, while separate, remains connected as a family through
the children. The joint custody appeared to work satisfactorily.”

At paragraph 27 Her Ladyship said, “I am satisfied that the Parties are able to
communicate better than has been their recent experience. Having seen both parents
and two of the children in the Courtroom, I am satisfied that the Parties are
knowledgeable of young people, that they both love their children deeply, that they
both have their children’s best interests at heart and that the children need the guidance
of both parents. I am satisfied that the Parties will be able to communicate on these
essential matters key to custody which are described in their Separation Agreement:
religious upbringing; educational programs; athletic and recreational activities;
healthcare; and significant changes in the social environment4 of the children. For
these reasons, I am ordering joint custody and joint guardianship of all three children.”

47. The law should not countenance the use of children as a vehicle to correct power imbalances. In Senft v. Senft (February 156, 1994), Nanaimo Registry #5920/008871) the mother opposed the father’s request for joint custody. Vickers J. found both parties to be good parents. Vickers J.’s comments on using children to build a power base are instructive: “[The father] does not seek joint custody as an instrument of power. I would not hesitate to deny his request if that were the motivation. In my view, he wants to take an active and constructive role in the lives of his sons because he considers that to be in their best interest”. In the result, Vickers J. granted an order for joint custody concluding, “it would be in the best interests of the children.” (p.6)

48. Madam Justice Humphries, in the decision from a hearing on October 19 through 22, 1999, in Berry v. Batchelor (1999-11-15, Docket D109753, Vancouver Registry) overruled the desire of both parents for sole custody and awarded joint custody with these comments, at paragraph 12 of Her Ladyship’s Reasons:

“Given the high degree of responsible and appropriate commitment evident in both parents, it is not desirable to establish a hierarchy of responsibility between them. Both are equally fit to care for the children. However, the logistics of their respective jobs and pursuits together with the tensions between the parties necessitate the imposition of a structured arrangement to avoid conflict and ensure the best interests of the children”
(emphasis added by counsel)
49. In paragraph 1 at the beginning of this Argument I referenced the Anson case being a 1978 decision of Huddart, J. as she then was. That was a leading case in its day. A leading case presently from our Court of Appeal on the subject is Robinson v. Filyk, Vancouver Registry Docket CA017385. The Judgment dated 9th of December, 1996 is also a Judgment of Madam Justice Huddart. It is emblamatic of the evolutionary progress that the law takes that, in Robinson Madam Justice Huddart takes issue with her own previous judgment in a progressive way.

50. Referencing her earlier comments in Anson to the effect that joint custody was only appropriate in limited and specific circumstances such as the necessity of both parents being in agreement, Her Ladyship says:

“I have come to be persuaded that such a statement is as much a statement of legal or factual presumption as that of the majority in Baker and Kruger. It is now clear that legal and factual presumptions have no place in an inquiry into the best interest of a child, however as much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the actual individual justice to which every child is entitled.”

51. This statement from our Court of Appeal in rapidly increasing number of judgments in the Supreme Court of British Columbia amply demonstrate the reasons why there is a much more liberal granting of joint custody then there was only ten years ago.

52. Week on week off shared parenting was ordered by Mr. Justice Hunter in the case of
Bosert v. Bosert, Kamloops Registry 2001 BCSC 939, Judgment dated June 27, 2001. In that case the parties had agreed to joint custody and joint guardianship but the mother, together with the Section 25 report done by a Kamloops psychologist, Dr. J. Bowman, argued that the mother be the principle residence and the children visit their father. They had two daughters, aged six and four at the time.

In Birks v Birks, the decision of Madame Justice Dillon in the Supreme Court of British Columbia: B.C.S.C. 894, handed down June 21st 2001, after separation the three children, born 1985, 1987 and 1991 were primary resident with their father. At the trial the father sought sole custody. The mother favoured joint custody. The trial judge structured a parenting schedule wherein, over each three week rotational basis, the children would reside ten days with one parent and eleven days with the other.

Carey Linde
Barrister and Solicitor