Month: June 2020

June 2, 2020 – Joint Custody & Parallel Parenting

“The appellant’s third submission is that a joint custody order was not appropriate because the parties were continually in conflict over how best to raise Jacob and could neither co-operate nor communicate with each other on his upbringing. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children. See for example the reasons of Weiler J.A. in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, despite the conflict between them, the parties, to their credit, have largely co-operated on major decisions affecting Jacob. The issue of Jacob’s schooling, to which I will return later in these reasons, is the exception.

Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that 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. See T.J.M. v. P.G.M. (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.”

Ursic v. Ursic, 2006 CanLII 18349 (ON CA) at 25-26

“The Family Responsibility Office asks for an order that the Respondent be incarcerated for failing to comply with a final default order of September 23, 2015.  He was served with a notice of motion dated October 20, 2016 seeking a warrant of committal.  Even with certain credits, FRO says there is still more than $4,000.00 owing.  Today is the 11^th appearance of the motion for warrant of committal.

…

The Respondent is self-represented.  Sometimes he misses court, but on those occasions when he has attended he has previously been assisted by duty counsel.

Today however, he was able to get some advice from duty counsel in the duty counsel office.  However, he was advised that duty counsel would not be attending with him in the courtroom, during the hearing to determine whether he is to be incarcerated.

I stood the matter down and invited duty counsel Mr. Mitrinandan to attend to explain Legal Aid’s position.  He spoke to his supervisor and confirmed that Legal Aid’s policy is not to represent parties in court during hearings to determine whether they are to be incarcerated, even if (as was the case with this Respondent) they otherwise qualify financially for duty counsel assistance.

Mr. Mitrinandan was quite respectful and cooperative and indicated that he would assist the Respondent if the court ordered him to do so.  I indicated that I was not ordering duty counsel to participate.  I was requesting it because I thought it was the right thing to do.

Accordingly, we have a policy issue which takes me by surprise.

Legal Aid routinely has duty counsel assist parties in criminal court to try to get them out of jail, at bail hearings.

Legal Aid routinely has duty counsel assist parties in family court, for contested motions and for conferences dealing with sometimes extremely trivial and superficial matters.

It seems inconsistent – and grossly unfair – that when the Respondent in this case is facing the possibility of incarceration – the most drastic step the state can take – Legal Aid suddenly says he’s on his own.  I would have thought that dealing with someone’s liberty is probably the most important type of case where Legal Aid should be involved.

The lawyers before me today didn’t create this mess, and apparently they don’t have the ability to resolve it.

But this court has to ensure that the process is fair.  And I don’t think it is fair to have the Respondent represent himself (without proper legal advice which is readily available) at a hearing where the state is asking to put him in jail.

The matter will have to be adjourned while Legal Aid Ontario (hopefully) reconsiders its policy.”

         FRO v. Wilson, 2018 ONSC 3494 (CanLII) at 1, 4-14