“The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:
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- There must be evidence of historical communication between the parents and appropriate communication between them.
- It can’t be ordered in the hope that it will improve their communication.
- Just because both parents are fit does not mean that joint custody should be ordered.
- The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
- No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
- The younger the child, the more important communication is.
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Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260 (CanLII); Roy v. Roy 2006 Canlii 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).
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 SC), 2009 CanLII 6423 (Ont. SCJ.).
Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb 2008 CanLII 19764 (ON SC), 2008 CanLII 19764 (Ont. S.C).
In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Garrow v. Woycheshen, 2008 ONCJ 686 (CanLII), 2008 ONCJ 686, (Ont. C.J.); Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (CanLII).”