“I have also considered, but must reject, the suggestion of joint custody for Jersey.
In Canadian law, there is no default position in favour of joint custody, as each case is fact-based and discretion-driven.”: Rapoport v. Rapoport, 2011 ONSC 4456 (S.C.J.), at para. 47. In considering whether joint custody is appropriate, “the courts have consistently held that there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children.” Ibid. at para. 48, citing Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872, 27 R.F.L. (6th) 44 (C.A.), and Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, 10 R.F.L. (6th) 373 (C.A.).
In Kaplanis v. Kaplanis, our Court of Appeal held that in order to grant joint custody, there must be “some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”: Kaplanis v. Kaplanis, at para. 11. Merely “hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.” Ibid. The rationale is that the best interests of the child will not be served if the parents are unable to make important decisions concerning the child under a joint custody arrangement: Kalliokoski v. Kalliokoski, at para. 34.
Moreover, in some situations, a joint custody order may actually defeat the child’s best interests. As Pazaratz J. stated in Izyuk v. Bilousov, “[i]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully: Izyuk v. Bilousov, 2011 ONSC 6451 (S.C.J.), at para. 504, quoted and followed in Scott v. Chenier, 2015 ONSC 7866 (S.C.J.), at para.27 per Chappel J.