“Parallel parenting is a form or sub-category of joint custody where the court attempts to carve out the incidents of custody, providing each parent with an exclusive domain of responsibility so that one parent has the final say in the case of conflict. Despite the Court of Appeal’s judgment in Kaplanis (supra), some courts have made parallel parenting orders even in high-conflict cases in circumstances, for example, where a sole custody order might facilitate parental alienation. The court must still be satisfied that that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child.
In K. (V.) v S. (T.) (supra), Chappel J. discussed the concept of parallel parenting:
77 As noted previously, in recent years, the concept of “parallel parenting” has developed in Family Law practice and in the case-law. This phrase has been used to describe various types of parenting arrangements, and in fact there is some dispute in the academic literature about the precise definition of parallel parenting. (Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.). In some circumstances, parties and the courts have used the phrase “parallel parenting” to describe what is essentially a joint custody regime with additional, more specific terms to address particular areas of decision-making. In other cases, parallel parenting is described as a “sub-category of joint custody” which involves granting each party separate, defined areas of parental decision-making authority independent of each other. For ease of reference, I will refer to this latter concept as “divided parallel parenting.” This form of parallel parenting has been described by Rachel Birnbaum and Barbara J. Fidler, as quoted by Smith, J. in Hensel, in the following terms:
Parallel parenting as defined in the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather; parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making. (Rachel Birnbaum and Barbara Jo Fidler, “Commentary on Epstein and Madsen’s Joint Custody with a Vengeance: The Emergency of parallel Parenting Orders.”).
78 In other cases, parallel parenting has taken the form of both parents being independently granted the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without consent from the other parent. (See Mol v. Mol 1997 CarswellOnt 3693 (Ont. Gen. Div.); Ursic v. Ursic, (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont C.A.) I will refer to this as “full parallel parenting” for ease of reference.
79 Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child’s best interests. (M. (T.J.) v. M. (P.G.), 2002 CarswellOnt 356 (Ont. S.C.J.). There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above timesharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.
80 The Ontario Court of Appeal has to date not dealt comprehensively with the concept of parallel parenting. As in the case of joint custody, the jurisprudence on this topic will likely evolve over the years as the Court of Appeal is required to deal with specific fact situations that come before it. Unfortunately, however, some comments made in the Court of Appeal jurisprudence to date have generated uncertainty about the availability of parallel parenting in high conflict situations where joint custody is not a feasible option. This uncertainty is significant, given that in practice, both in negotiated settlements and in courts across the country, parallel parenting has been welcomed as a valuable solution in high conflict cases for achieving solutions that are in the best interests of children.
When the concept emerged, parallel parenting was seen as an appropriate disposition where, notwithstanding the fact that the parents were uncooperative, joint custody was in the best interests of the child. In M (TJ) v M (PG), (supra) Aston J. stated at paragraph 20:
… “parallel parenting” orders have become a form of joint custody, a sub-category if you will, which does not depend upon co-operative working relationships or even good communication between the parents. The concept (consistent with subsection 20(1) of the Children’s Law Reform Act) is that the parents have equal status but exercise the rights and responsibilities associated with “custody” independently of one another. Section 20(7) of the Children’s Law Reform Act, RSO 1990, c. C.12 provides clear authority for the court to deal separately and specifically with “incidents of custody”. The form of a “parallel parenting” order addresses specific incidents of custody beyond a mere residential schedule for where children will reside on a day-to-day basis.”