“Courts have repeatedly said that joint custody (when that terminology was used) requires “a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own differences behind those of the child’s best interests”: Giri v. Wentages, 2009 ONCA 606, at para. 10; see also Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 (C.A.).
In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at paras. 11-12, the Court of Appeal stated:
[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, 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. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. […]
[12] Insofar as the ability of the parties to set aside their personal differences and work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration.
In L.B. v. P.E., 2021 ONCJ 114, at paras. 95-97, the Court summarized the additional applicable case law as follows:
[95] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.
[96] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).
[97] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, 2015 ONCJ 619.
[98] In S.S. v. S.K., 2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents’ conflict;
b) more or less likely to expose the child to parental conflict; and,
c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.”