September 5 – Meaning of “Joint Custody”

“In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awarded the custody, with full parental control over, and ultimate parental responsibility for, the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in the decisions that are made in exercising that control or in carrying out that responsibility. The foregoing, of course, does not address the matter of the respective obligations of the custodial parent and the other parent to contribute to the support of the child, nor the right, if any, of the other parent to access to the child.

By contrast, to award to both parents the joint custody of a child on the basis already described is to clothe both parents with equal parental control over, and equal ultimate parental responsibility for, the care, upbringing and education of the child, but to name one of the parents as the parent with whom the child shall ordinarily reside under that parent’s immediate direction and guidance (whether indefinitely or as otherwise stipulated), with the other parent to enjoy such access to the child as does not unreasonably impede the ability of the first to assume his or her immediate direction and guidance of the child, nor unreasonably interfere with the right of the first parent to live his or her own life separate from the other.

If the foregoing can be said to be a reasonably accurate formulation of what is involved in this kind of joint custody, it seems obvious that it is indeed an arrangement that requires maturity on the part of each parent:

(a) in accepting that the other is a person with whom he or she can share, on an equal basis, the control over and responsibility for the child which together they, as parents, must assume in making the many important decisions that must be made with respect to the child’s care, upbringing and education (including of course the child’s religious upbringing);

(b) in accepting that the child must physically reside with one or the other of them (in the words of Weatherston, J.A., in McCahill v. Robertson (1974), 17 R.F.L. 23, quoted in Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 at p. 396, 95 D.L.R. (3d) 529 at p. 534, 8 R.F.L. (2d) 236, to which reference has already been made: ”A child must know where its home is and to whom it must look for guidance and admonition …”), and

(c) in accepting that generous access by the other parent is an essential part of the arrangement and must be assured by some sort of agreement that can operate in such a way that it will not ultimately reduce to ruins the whole arrangement.

Above all, it requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, of their own will and in good faith, to make it work.”

Kruger v. Kruger, 1979 CanLII 1663 (ON CA) per Thorson J.A.