Today I observed a very interesting case conference at the Ontario Court of Justice in North York while waiting for my matter to be called.
The couple at the heart of the case have been separated for a few years. There has been no custody order, but the 9-year-old daughter lives with Mom. That means Mom has de facto custody (meaning “custody in fact”) and is responsible for making decisions regarding the daughter’s well-being.
Dad gets to see his daughter whenever he wants. Dad also gets to speak with the daughter on the phone at Dad’s convenience. Mom doesn’t interfere with Dad’s access at all. The daughter doesn’t have special needs and is doing rather well at school. However, Mom and Dad see each other as nemesis and don’t communicate with each other.
Interestingly, Dad brought an application before the court seeking joint custody of the daughter. Dad claimed that it would be better for the daughter if the Mom and Dad make the decisions jointly. (He knew better than to ask for sole custody.)
The judge was not happy about this application. He questioned Dad on the application’s merits. The judge explained the legal foundations in a custody application to the parties. I summarize the pertinent points below:
- In high conflict cases, such as the present one, where the parents are unable or unwilling to communicate with each other, the Ontario Court of Appeal has ruled that the court should not order joint custody.
- If the children are functioning well under the existing arrangement, absent compelling reasons, the court should not interfere.
- If there are indeed compelling reasons that warrant the court’s interference, the moving party has the burden to prove to the court through witnesses and evidence that the proposed alternative greatly advances the child’s best interests.
In the present matter, Dad acknowledged before the court that the existing access is functional and there are no compelling reasons to change. Dad further admitted that he wouldn’t have any witness other than himself to testify if a trial were to be held.
In the end, the matter was sent to a settlement conference to determine whether there are genuine issues that warrant a trial.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
