Outline of Law
by Carey Linde, Lawyer
(This article may be reproduced by any person for any purpose provided only that authorship is credited to Carey Linde.)
- 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.”
- 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.”
- 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.”
- 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.”
- Sections 24(3) and 24(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).”
- 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.”
- 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), 49 R.F.L. (3d) 117 (S.C.C.) [Tab 17]
- The “parental preferences” or “rights of the parties should play no role in the court’s decision about custody.”
Young, supra [Tab 17]
- That there is conflict between parents is of itself not a sufficient basis for assuming that the child’s best interest will not be served.
Young, 34 [Tab 17]
- The “courts must be directed to create or support the conditions which are most conducive to the flourishing of the child.”
Young, supra [Tab 17]
- “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.) [Tab 9], 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 J.’s (as she then was) comments in Anson v. Anson (1978), 10 B.C.L.R. (2d) 357 at 367 (Co. Ct.) [Tab 15] 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…”
- 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. Laba v. Laba (1192), 98 D.L.R. (4th) (B.C.S.C.) [Tab 7], Allan J., in imposing joint custody, contrary to the wishes of both parents, noted the “definite judicial trend away from the earlier requirement that both parents must agree to joint custody.”
- Wilson J.A., as she then was, dissented in Kruger v. Kruger (1979), R.F.L. (2nd) 52 (Ont. C.A.) [Tab 14]. 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 interests 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.”
- Madame 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.)
- Wilson J.A.’s dissent has been regarded favourably by trial judges in British Columbia. In Kamimura v. Squibb (1988), supra [Tab 9], Hinds J., as he then was, was of the view that Sections 16(4) and 16(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.) [Tab 13], 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.”
- In Tomlin v. Tomlin (1992), 69 B.C.L.R. (2d) 363 [Tab 12], 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).
- In Woodland v. Ceeco (February 8, 1995), Rossland Registry No. 1895 (B.C.S.C.) [Tab 16], 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 interest of the child.” (p.p. 3 and 4). 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.”
- 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.
- In Young v. Young, supra [Tab 17], Madame Justice McLachlin stated that “Conflict between parents, is, in and of itself, not a sufficient basis for assuming that a child’s interest will not be served.”
- Sopinka J. in Young v. Young, supra [Tab 17], 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.”
- 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.
- Hood J. captured the essence of this idea in Fry v. Silkalns, supra [Tab 13] 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?”
- 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 absent.
- 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:“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, supra [Tab 13] at p. 177.
- 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 superficial 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. Silkalns, supra [Tab 13] at p. 175
- 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.
- Normal, healthy children such as the child is 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.
- 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.
- 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.
- Where the question 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.
- Mr. Justice Burnyeat in a judgment dated August 8, 1998, in the matter of Dorward v. Fisher(Docket F950338, Vancouver Registry) [Tab 6] ordered joint custody and said at page 2:“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.”
- 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 cooperate in the future in order that what is in Jordan’s best interests can be undertaken.”
- 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), [Tab 5], 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.”
- Madame 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) [Tab 3]. 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 eleven-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 paragraph of her judgment where the comment is found:
(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 four years old and their daughter is eleven 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 could learn to communicate in a meaningful way; because it would be in the children’s best interest if their parents could jointly parent them; and because there is now mechanism in place to assist the parents to communicate effectively with a minimum of stress, in my view it would be in the children’s best interest 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.”
- In the October 8, 1998, judgment of the Honourable Madame Justice Saunders (Vancouver Registry, D105481) in Izen v. Izen[Tab 1], 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 interest 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 interest 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 may have secondary value to another child because their relationships with each other will last their lifetimes.”
- 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. The change from joint custody to sole custody created 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. 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 court room, 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 those essential matters key to custody which are described in the separation agreement: religious upbringing; educational programs; athletic and recreational activities; healthcare; and significant changes in the social environment of the children. For these reasons I am ordering joint custody and joint guardianship of all three children.”
- The law should not countenance the use of children as a vehicle to correct power imbalances. In Senft v. Senft (February 5, 1994), Nanaimo Registry #5920/008871 [Tab 11] 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)
- Madame 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) [Tab 4] 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.)
- 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, supra [Tab 15]. 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 [Tab 18]. The Judgment dated the 9th day of December, 1996, is also a Judgment of Madame Justice Huddart. It is emblamatic of the evolutionary progress that the law takes that, in Robinson Madame Justice Huddart takes issue with her own previous judgment in a progressive way.
- 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 interests 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.”
- This statement from our Court of Appeal demonstrates the reasons why there is a much more liberal granting of joint custody then there was only ten years ago.
- For the Sake of the Children, the report from the Joint Committee of the House of Commons and Senate that was produced following meetings with the public across the country, recommended that the Divorce Act be amended to provide for a presumption of shared parenting. The Joint Committee thus gave significant status to the concept of shared parenting. The Federal Government of Canada has chosen to basically shelve it while it considers further “study”. However, courts across the land have taken up the concept of shared parenting and are rapidly putting flesh on the bones of the concept by making orders granting shared parenting schedules of equal time for children with each parent in circumstances where they would have been less likely to do so in the recent past.
- Supported by the public, the psychologists and an increasing number of masters and judges, equal time shared parenting of children, post-separation, is clearly a concept that is gaining general acceptance. It is clearly in the best interests of children because it provides for minimum transfers back and forth, proper and significant equal time with both parents allowing for equal access and opportunity with both parents. It gives the best sense of schedule and security to children.
- Some of the recent decisions, both from trial and interim applications, awarding equal time shared parenting and joint custody where one parent typically sought to be the sole custodial parent with “access” to the other parent every other weekend are as follows.
- Kitharis v. Kitharis, Docket F980093, Vancouver Registry, May 11, 1998 [Tab 19]. On the first appearance interim application, Master Doolan awarded joint guardianship with respect to the children aged two, five and six, ordered a Section 15 report and ordered “that the children will spend one week with the father and then they will spend one week with the mother and they will alternate that arrangement until the access report is received and there is a hearing on the merits, if that must be”. The status quo at the time of the hearing was that the father had “access” to the children every second weekend. The Master, at paragraph 3, said, “there is a great deal of animosity…there have been many charges and counter-charges both against each other and other members of the family. It all evidences a great deal of unhappiness and hostility between the Parties… (counsel) is correct in that it is not reasonable on most of the issues to make a definitive finding, it would be unfair in the circumstances. It must be understood by the parents, as it is by their counsel, that this is not a contest between good parents and it is not a contest between good or better parents. The test is, what is in the best interests of the children”.At paragraph 4, the Master says: There is some evidence that may lead one to conclude that he may not be a good husband. There is also some evidence she may or may not be a good wife. It has been alleged that he is abusive. He denies that. There is some evidence that she has schemed to set him up, that is denied as well. There is very little evidence that either is a bad parent. I accept and have no difficulty in believing that they love their children. The evidence does not show that either the mother or the father are a danger to their children. Therefore, if the children were to live with their dad, I do not think there would be a danger. If the children stayed living with their mother, I do not think there would be a danger”.
- Hamilton v. Hamilton, Docket 09927, Prince George Registry, May 30, 2000, Reasons for Judgment of Master Baker [Tab 20]. A six and a nine year old were made the joint guardian and custodial children of their parents despite the fact that each party went to “great pains to establish the other as the unreasonable in all of this…the parties have each failed so far to place their spousal problems above their responsibilities as parents. Each has demonstrated an inclination to pursue personal needs or goals regardless of how those pursuits or goals might affect the children”. Master Baker ordered a parenting schedule that would have the children parented four days in the primary care of one parent and then four days in the primary care of the other parent.
- Landers v. Evans Docket F992809, Vancouver Registry, July 21, 2000, Reasons for Judgment of Madam Justice Boyd [Tab 21]. The interim application before Madam Justice Boyd involved two girls, aged eight and twelve. The judge made no finding of fact as to which of the parents had traditionally been the primary caregiver.At paragraph 2, Her Ladyship stated, “the father seeks a true joint custody ‘shared parenting’ order, with the children spending one week on and one week off in each parent’s home. The mother seeks and order for sole custody with the father to have access to the children every alternate weekend as well as at other times, such as birthdays, statutory holidays and the like”.At paragraph 26, Her Ladyship stated, “On a review of all the evidence, I am left with the distinct impression that much of the last year or more has been spent by each parent essentially competing for he children and competing to demonstrate their stated skill or abilities to meet their needs. Both parents have suffered tremendous stress resulting from the marital breakdown an both have been unemployed. Whether consciously or not, both have used this opportunity to focus almost exclusively on the children, thus attempting to solidify their competing claims. It is clear the children have suffered from this ongoing struggle as the wife continually attempts to narrow and the husband continually attempts to expand his opportunities to parent the children. The children witness this ongoing struggle or at least experience the tension in each parent’s home and during the exchanges as they occur”.At paragraph 31, Her Ladyship stated, “At least at this juncture, it appears the difficulties and strains between the Parties (which are unfortunately borne by the children to some degree) are the reflection of the unresolved and somewhat fluid arrangement which has existed to this point. I believe that a true shared parenting plan, with the children spending one week on, one week off with either parent may allow for a dissipation of the parent’s ongoing conflict and the children’s resulting strain”.
- Lindsey v. Lindsey Docket F990279, Vancouver Registry, April 14, 2000, Reasons for Judgment of Madam Justice Downs [Tab 22]. After 7 seven days of trial, Madam Justice Downs ordered that each parent have the day to day care of four year old Michael for “alternating four day periods”.At paragraph 1 in her Reasons for Judgment, Her Ladyship stated, “In January 1998, they separated. Michael was 17 months old. Ever since then, they have been at war over numerous issues, primarily issues about Michael’s care and control. It is my task to decide what parenting arrangements will be in Michael’s best interests.”Each parent sought sole custody as a result of “endless communication problems” that they each blamed on the other.
- Hearn v. Hearn Docket E001004 Vancouver Registry, October 19, 2000, Reasons for Judgment of Master Baker [Tab 25] An interim application before Master Baker. The mother applied for interim sole custody of the couple’s three children, ages five, seven and eight. The father sought an equal sharing of the responsibility and time with the children. At paragraph 23 of his Reasons for Judgment the Master ordered, “The Parties shall therefore share joint custody and joint guardianship, and will share the day to day care of the children on an alternating weekly basis…”.
- MacArthur v. Heany Docket 00/2729 Victoria Registry, October 24, 2000, Reasons for Judgment of Master McCallum [Tab 26]. On an interim application involving two children aged five and three Master McCallum held that, while the mother was the primary caregiver and wanted the children residing primarily with her, he granted joint custody and shared parenting as the father had sought. He orderd two week rotations of primary residence from one parent to the other.At paragraph 4, the Judge states, “The evidence offers little to assist in the decision. The affidavits confirm the parties’ positions but, not surprisingly, contain little direct evidence about the children’s best interests. They do confirm the Plaintiff’s role as primary caregiver during the separation but the Defendant says that arose at her insistence and not because of his lack of interest in the children.”At paragraph 5 of his judgment, the Master stated, “The court has not often been inclined to order shared custody on interim applications preferring the relative comfort and security of the status quo suggested by the authorities. That solution has the advantage of little change in a time of upheaval for a family but may set the stage for the future and preclude other arrangements that might serve the family better. The answer may lie in a deeper analysis of the status quo with less emphasis on the day to day tasks and more on the intangible aspects of family life”.At paragraph 6, the Judge states, “These children had the advantage of two interested and involved parents who made an arrangement to provide for their care based on the prevailing situation during their cohabitation. Circumstances have changed and it may be that parenting arrangement ought to change as well to recognize that reality. There is no evidence that a change will be contrary to the children’s best interests. All that can be said is that there will be a change. The children have apparently been able to accommodate the physical separation of their parents and the disruption to their lives as a result of the current parenting arrangement, which sees them spending alternate weekends with the Defendant. Will the Defendant’s suggestion of shared custody be so disruptive as to be inimical to their best interests?”At paragraph 7, the Judge states, “Shared custody would require no more and perhaps fewer “transfers” of the children although the transfers would be for longer periods of time. The children would sleep in different beds oftener but both beds would be familiar and with a parent. The parenting burden would be shared n a much more equitable basis in a shared custody model than in the primary residence/access model. Parenting in a non-separated family is likely life’s most demanding task and there is much commentary on the burden of single parenting. Shared custody parents remain single parents but have the opportunity for respite. The children have the advantage of knowing each parent as a full-time parent rather than one as an access parent.
At paragraph 8, the Master states, “These parents have the resources to make the shared custody model work. It offers them and the children advantages not available in other parenting plans. There is no evidence to suggest the children cannot adapt to a change. Shared custody may not be a significant departure from the current situation. The children have had ongoing and extensive contact with the Defendant since separation and are familiar with him and his living situation. He is familiar with their circumstances and their needs and he is their father. The children ought to be able to know him as a parent particularly in these relatively early days of their lives in a new family situation”.
At paragraph 9, the Judge states, “The Plaintiff and the Defendant will be the joint custodians of the children and have equal time (or as otherwise agreed) as primary residence parents. I am inclined to the Defendant’s suggestion of a two week rotation of primary residence but they should be at liberty to speak to that issue if they cannot resolve it”.
- Pullman v. Pullman Docket D041328 New Westminster Registry, November 16, 2000. [Tab 27] After nine days of trial during which the mother sought sole custody with limited visitation by the children to their father, and a Section 15 report by Robert Colby who recommended that the mother be the primary residential parent, Mr. Justice McKinnon ordered that the two daughters of the marriage, aged 5 and 7, be under the joint custodial care of both parents and that a shared parenting schedule of week on/week off be implemented.At paragraph 27, Mr. Justice McKinnon states, “I do not wish to dwell upon the faults or weaknesses of these parents. We all suffer deficiencies. I merely point out that, although much of the trial was taken up with complaints against one another, neither is a bad person nor does either suffer any serious problems that might impact adversely on the children”.At paragraph 28, the Judge stated, “Mr. Pullman candidly admits that Ms. Pullman is a loving, caring mother who has devoted herself to the children’s well-being. She carefully researches every area impacting upon the children, from food to school’.At paragraph 29, the Judge states, “Ms. Pullman is less generous in her assessment of Mr. Pullman and I must say that troubled me somewhat”.At paragraph 30, the Judge states, “Ms. Pullman seems incapable of setting aside prior differences when assessing Mr. Pullman’s parenting abilities. She offered several very minor complaints in support of her position for sole custody but nothing of any significance whatever”.
At paragraph 31, the Judge states, “Ms. Pullman essentially complains that because they do not ‘get along’ a joint custody order would not work. Each party cited incidents in support of complaints about one another either as parents or as an example of uncooperative behavior. These were all very minor transgressions that simply indicate two people with different approaches and ideas”.
At paragraph 32, the Judge states, “Although Mr. Pullman offers a different style of parenting, in my view he is no less loving, protective and dedicated to his children than Ms. Pullman. I was impressed with his stance that custody should be joint. Unlike Ms. Pullman, he did not seek sole custody, though he conceded he would take it if offered”.
At paragraph 39, the Judge states, “Witnesses called by both on this trial merely confirmed my impression that both are good parents. However, each has a different parenting approach that grates on the other”.
At paragraph 55, the Judge states, “Mere “uncooperative” actions seem now not to be a bar to joint custody. Since Stewart, several cases have considered the issue”
At paragraph 57, the Judge states, “Though a great many cases have considered the issue, it is perhaps best summarized in the comments of Martinson, J. in Claybrook v. Claybrook,  B.C.J. No 1083, approved by Kirpatrick J. in Langois v. Langois, 2000 B.C.S.C. 511 at para. 80. Martinson J. commented at para. 12:
For a long time there was a debate among judges about when joint custody should be granted and when sole custody should be granted. Some thought that it is in the best interest of the children to have only one parent make the decision, even though the other has generous access. Some judges thought that joint custody should only be granted when both parents agree to it.
Others thought that joint custody should be granted even if there was no agreement as it is in the best interest of the children to cooperate. Some thought there should be a presumption that parents continue to have joint custody after they separate like they had before they separated unless it can be shown why there should not be joint custody.
Both the British Columbia Court of Appeal and the Supreme Court of Canada have now provided direction to trial judges in this respect. The Court of Appeal, in Robinson v. Filyk 91996), 84 B.C.A.C. 180 followed an earlier decision of the Supreme Court of Canada called Gordon v. Goertz,  2 S.C.R. 27. These courts have said that there should be no starting presumption or point of view by judges about what is best for children. What a judge must be concerned about is what arrangement is best for the particular child before the court, given that child’s situation and that of the child’s parents.
In Gordon v. Goertz the Supreme Court of Canada said (at p. 58) that Parliament did not entrust the court with the best interests of most children. It entrusted the court with the best interests of the particular child whose custody arrangement fell to be determined.
In Robinson v. Filyk, at para. 29 the Court of Appeal said that the only issue is the child’s best interest. The child’s best interest must be found within the practical context of the reality of the parents’ lives and circumstances. The Court said that legal and factual presumptions about what is best for children, like the ones I have referred to above, have no place in an enquiry into the best interests of a child. They detract from the “individual justice to which ever child is entitled” (at p. 296)
At paragraph 58, the Judge states, “The professional assessment at bar, with which I agree, is that these children should be in the joint custody of both parents. I respectfully disagree with Mr. Colby (the Section 15 psychologist) that the “primary residence be with Mrs. Pullman”.
At paragraph 60, the Judge states, “The parties live reasonably close together. They have resolved school issues that seemed a problem when Mr. Colby made his recommendations. Each has, or is capable of having, a comfortable home environment in which the girls can be secure and happy. In my view , a week about arrangement would be far preferable to a convoluted “generous access” provision”.
At paragraph 61, the Judge states, “I therefore order joint custody with week about residence”.
Pullman v. Pullman 2000 BCSC 1654 After nine days of trial during which the mother sought sole custody with limited visitation by the children to their father, and a Section 15 Report by Robert Colby recommended that the mother be the primary residential parent, Mr. Justice MacKinnon ordered that the two daughters of the marriage, aged five and seven, be under the joint custodial care of both parents and that a shared parenting schedule of week on week off be implemented.