"Is joint custody granted only in amicable divorce cases? My ex spouse and I are far from friendly, but there’s no way I want to lose access to my kids."

Custody disputes are perhaps the most difficult aspect of family law.  Fuelled by emotion, these disputes tend to drain the participants both emotionally and financially. Attentive to the sensitive nature of these disputes, our courts have attempted to carve out new and innovative ways to diffuse high conflict cases, resulting in several developments in custody law since the Ontario Court of Appeal decision in Kaplanis v. Kaplanis. In Kaplanis, the Court of Appeal made clear that joint custody should not be awarded in high conflict situations. The Court held that joint custody or parallel parenting should only be ordered where parents can communicate effectively. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. In the absence of evidence of co-parenting, one parent will be awarded sole custody.

Notwithstanding the Court of Appeal decision in Kaplanis, recent case law suggests that joint custody, together with a parallel parenting model, may be a viable option in high conflict cases. The Ontario Court of Appeal decision in Ursic v. Ursic together with subsequent cases, revive the notion of parallel parenting in high conflict cases. Courts are increasingly recognizing that it is not in the best interests of children to simply give one parent final say over all decisions relating to the children, especially if there is potential for that parent to abuse that power in an effort to damage the other parent's relationship with the child or children. Where both parents are capable and want to play an active role in their children's lives, joint custody together with a detailed parallel parenting regime is a viable option notwithstanding the parties' conflict and inability to communicate. To answer your question, more and more courts today are distinguishing Kaplanis and not simply ordering sole custody in high-conflict cases, opting instead to provide parents with tools that will allow them to parent in the best interests of their children, while at the same time reducing conflict.

Gary Joseph and Michael Stangarone are lawyers with Toronto's MacDonald & Partners family-law firm. They can be reached at (416) 971-4802. View their firm's Divorce Magazine profile.

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