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. Mediation and arbitration have become popular alternatives to litigation. Parenting co-ordination has also been introduced as a conflict reducing technique. Sadly, however, many cases continue to demand litigation solutions.
Attentive to the sensitive nature of these disputes, our courts have attempted to carve out new and innovative ways to diffuse high conflict cases. In the paper that follows we try to make sense of the recent developments in custody law.
In Kaplanis v. Kaplanis, the Ontario 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 revives the notion of parallel parenting in high conflict cases.
Parallel Parenting before Kaplanis
Before Kaplanis, forms of parallel parenting were ordered where both parents were capable but had a conflicted relationship and could not parent together in the best interests of their children. The parallel parenting model carves out decision making, providing each parent with an exclusive domain of responsibility so that one parent has the final say in the case of conflict.
Parallel parenting attempts to ensure that both parents have an equal opportunity to share in the upbringing of the children notwithstanding their conflict. In Mol v. Mol, a decision released before Kaplanis, parallel parenting was ordered in the face of the parties’ conflict. The Wife was hostile towards the Husband, and the children were suffering from the effect of their parents’ conduct and ongoing conflict. The Children’s Lawyer concluded that the children’s relationship with their father would become increasingly strained if the Wife was given sole custody. Justice Kruzick agreed with the recommendations of the Children’s Lawyer. His Honour held that joint custody would not take the form of co-operative parenting where both parents together make all major decisions relating to the children’s health, education and general well-being. Rather, his Honour ordered parallel parenting so that both parents make independent decisions in the best interests of the children notwithstanding their conflicted relationship.
The decision in Kaplanis effectively ended joint custody with parallel parenting in conflicted situations, concluding instead that it is better for one parent to make all the decisions than have two warring spouses attempt to make decisions together. Parallel parenting was shelved in favour of sole custody in high conflict cases. Courts opted to give one parent sole decision making power where the parents were unwilling to set aside their differences and work together to raise their children.
Cases since Kaplanis
Notwithstanding Kaplanis, recent case law suggests that the pendulum is swinging back to parallel parenting in conflicted situations. In Ontario, parallel parenting has been ordered since Kaplanis in high conflict cases where both parties are capable parents and should have an active role in the upbringing of their child or children, and where there is potential for one parent to abuse an order for sole custody.
In Ursic v. Ursic, the Ontario Court of Appeal declined to interfere with an award of joint custody in a high conflict case. The trial judge ordered joint custody with parallel parenting, setting out a detailed parenting schedule. The parties had a conflicted relationship, continually arguing over how best to raise their child, and could not co-operate with each other. The Mother appealed the trial judge’s decision. Before the Appeal, a social worker delivered an assessment report, which found that the parties had in fact worked together in the child’s best interests in the months preceding the Appeal, and concluded that joint custody should continue.
The Court of Appeal upheld the trial judge’s decision, recognizing that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing.
In Andrade v. Kennelly, Justice Harvison-Young ordered joint custody and parallel parenting in a high conflict case. The Wife had hostile feelings about the Husband, alleging him to be a sociopath and requesting that he only have supervised access. The Wife rejected the assessment conducted by Dr. Awad which found that the Wife would not support the Husband’s relationship with the children. She proceeded to trial in the face of the assessment.
Justice Harvison-Young ordered joint custody and set out a very detailed list of ‘ground rules’ to be followed by the parties to resolve disputes. The 31 paragraph parallel parenting order left little room for interpretation or potential for conflict between the parties. Her Honour concluded that the Wife wanted to establish a life with her children that left the Husband with little or no part in it. The Wife’s proposed move to Ottawa would result in the Husband’s relationship with his children ‘wither[ing] on the vine.’ The parallel parenting order ensured that the Husband’s loving relationship with the children would continue. Underlying Justice Harvison-Young’s decision was the very real possibility that the Wife would abuse an order for sole custody to harm the Husband’s relationship with the children.
In his annotation to Ursic v. Ursic, Philip Epstein writes that Ursic and Andrade, together with other cases, reflect a recent trend in high conflict cases that denies sole custody to the parent who is largely responsible for the conflict, who is not prepared to be a "friendly parent" and who has little regard for the access rights of the other parent.
In Moyer v. Douglas, joint custody was not an option because the parties could not work together in their children’s best interests. However, Justice Perell held that a parallel parenting regime was possible and reasonable in the circumstances. His Honour found that both parents were motivated by the best interests of their children, but could not co-operate. Justice Perell agreed with the custody and access assessor that parallel parenting was a viable and desirable choice for this family as it minimized the need for active cooperation between the parties. A sole custody order would have been arbitrary in the circumstances. Justice Perell carved out final decision making power in a very detailed parenting plan, giving the Wife responsibility for decisions related to health care and religion, and the Husband decisions about education. His Honour wrote the following on the merits of a parallel parenting order in cases of high-conflict:
…parallel parenting, where the parents each have an exclusive domain of responsibility, seems possible and reasonable for the immediate case…the communications problems are not an obstacle because cooperation is not a prerequisite to each parent making decisions or to the parent’s carrying out his or her parental rights and responsibilities. In the case of conflict, one parent will have the final say.
Justice Perell distinguished Kaplanis where "a parallel parenting order was made with the hope that it would improve the parenting skills of the parties" and followed Ursic in establishing a parallel parenting regime. His Honour writes, "Here they already had the skills, they just needed an arrangement that would allow them to use those skills while reducing conflict."
In Mancini v. Mancini, the parents were fully engaged in a ‘war of the roses’ to the detriment of their only son, Marco. The Wife tried to have the Husband arrested for harassment, theft, threatening, acts of vandalism, and made 5 complaints to the Children’s Aid Society, which were not substantiated upon investigation. She was found in contempt by Justice Snowie for limiting the Husband’s access. She attempted to use the police and CAS inappropriately to restrict or limit the Respondent’s access. She alleged that the child’s tooth decay was evidence that the child was not being taken care of by his father, when she had custody of the child half the time and was employed as a dental hygienist!
Joint custody was ordered. The court made a detailed parallel parenting order, 17 paragraphs in length, to facilitate the joint custody arrangement. Despite their conflict, the Court held that the fact that the parties had managed an interim joint custody regime was an indication that they were able to communicate and cooperate on some level in the best interests of the child. While issues remained between them, joint parenting could still work as long as accompanied by specific terms.
While many believed Kaplanis put an end to joint custody and parallel parenting in high conflict cases, recent case law such as Ursic and Moyer provide that parallel parenting will be ordered to solve the problems associated with ordering sole custody in conflicted situations. 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 the power 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. Courts 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 is a certified specialist in family law with an LL.M. in constitutional law. He was called to the bar in Ontario in 1978 and is also a member of the Alberta bar. He has extensive trial and appellate experience at all levels of the courts in both Ontario and Alberta and has appeared as counsel in the Supreme Court of Canada.