“As a matter of law and common sense, joint custody requires a high degree of cooperation between the parents: Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No. 1801 (C.A.). The issue before the trial judge in a custody case is the best interests of the child. Where one parent professes an inability to communicate with the other parent, that assertion alone does not mean that a joint custody order cannot be considered. Rather, the court must consider whether there is some evidence that, despite their differences, the parents are able to communicate effectively with one another: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (C.A.); Giri v. Wentges, 2009 ONCA 606 (CanLII), [2009] O.J. No. 5173 (C.A.), leave to appeal refused [2009] S.C.C.A. No. 438.
Joint custody is not appropriate where parents are unable to cooperate and communicate effectively and are unlikely to be able to achieve a sufficient level of cooperation: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179 (C.A.); Kappler v. Beaudoin, 2000 CanLII 22579 (ON SC), [2000] O.J. No. 1558 (S.C.J.). However, one parent cannot create problems with the other parent and then claim custody on the basis of a lack of cooperation: Lawson.
There is no default position in favour of joint custody in Ontario. Each case is fact based and discretion driven. Past parenting experience, both during cohabitation and after separation, is of critical importance to the court’s decision whether to order shared parenting in any form: Patterson v. Patterson, 2006 CanLII 53701 (ON SC), [2006] O.J. No. 5454 (S.C.J.).
Joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. In a parallel parenting regime, the court typically allocates decision-making on major matters so that in the case of conflict, one parent will have final say: Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178 (C.A.).”