The history of custody during the last century has witnessed a radical judicial shift from a strong paternal preference, through a strong maternal preference, to the present-day philosophy that both parents are forever and marriage breakdown and divorce should not preclude continuing meaningful relationships between the child and both parents. Increased legal recognition of the importance of preserving the child-parent bond that evolved during the marriage is manifested by changes in orders for joint custody and access that have evolved over several decades.40Before the first dominion-wide Divorce Act41 came into force in 1968, orders for joint custody were statistically insignificant. In recent years, courts have moved away from their former practice of granting sole responsibility for the children of separated or divorced parents to one of the parents and granting only access rights to the non-custodial parent. Today, some form of joint custody disposition is found in more than 40 percent of divorce cases, and a non-custodial parent is likely to be granted access privileges on one evening every week in addition to overnight access from Friday to Sunday on alternate weekends. During the summer vacation, a non-custodial parent is frequently granted access for two to four weeks, and other vacations and statutory holidays are often equally shared between the parents on a rotational basis.
Subsections 16(4), (5), and (10) of the Divorce Act42go some way towards recognizing that divorce should not undermine the family bonds that a child develops during the marriage of his or her parents.
Subsection 16(4) of the Divorce Act empowers the court to make orders "granting custody of, or access to, any or all children of the marriage to any
one or more persons." This subsection is of fundamental importance in that it recognizes a place for joint custody arrangements; it also entitles third parties, such as grandparents or other relatives, to enjoy access to the children of divorcing or divorced parents. Third-party applications for custody and access can only be brought under the Divorce Act by leave of the court. Courts will only allow third-party applications to be brought by persons who have been previously involved in the child’s life. Third-party custody orders are rare. Applications for access privileges by third parties, especially grandparents, are far more likely to be favourably received by the courts, especially when such access will provide a measure of ongoing stability for the child. Grandparents have no presumptive right of access to their grandchildren and must discharge the onus of proving that they should have a continuing relationship with the child, notwithstanding the opposition of the custodial parent to access.43Subsection 16(5) of the Divorce Act entitles a spouse who is granted access to make inquiries and to be given information concerning the health, education, and welfare of the children. Although subsection 16(5) falls short of giving equal participatory rights in the upbringing of the child to the non-custodial and the custodial parent,44it provides the foundation for an exchange of opinions that may facilitate the non-custodial parent’s meaningful involvement in decision making. While section 16(5) of the Divorce Act does not confer decision-making authority on the non-custodial parent,45 an equal right to participate in major decisions respecting a child’s health, education, or welfare may be conferred by a joint custody order under section 16(4) of the Divorce Act, notwithstanding that one of the parents is contemporaneously granted primary day-to-day care and control of the child.
Joint custody is a term that generates confusion. It may signify that separated or divorced parents will continue to share in making all major decisions concerning their child’s health, education, and upbringing. In this context, it is sometimes called "joint legal custody" to differentiate it from "joint physical custody," which signifies that the child will reside with each parent for substantial periods. Joint physical custody may, but does not automatically, involve equal time-sharing,46such as three and one-half days a week with each parent, or alternating weeks or months or years47with each parent. "Joint legal custody" usually exists when the parents have joint
physical custody, but "joint legal custody" can also exist independently of "joint physical custody."48Joint legal custody may extend across provincial boundaries or international borders.49Negotiated settlements and court orders should spell out parenting arrangements in unambiguous words that everyone can understand. This eliminates the risk that legal jargon such as "joint custody" will be misunderstood.50There are no presumptions, either factual or legal, in favour of sole custody or joint custody; each case must be determined on its own unique circumstances.51As Goepel J, of the British Columbia Supreme Court, pointed out in KDP v ARK, "there are no presumptions for or against joint custody, nor is there a threshold test to establish when joint custody is feasible," and while communication is an important factor, it is also important to "balance and preserve the relationship of the child with both parents."52Notwith-standing the lack of any presumptions, joint legal custody is usually ordered by the courts unless there exists an insurmountable inability to communicate appropriately so as to be able to jointly make decisions with regard to a child or where there is found to be a history of abuse in the family and/or where there is disinterest by one parent as regards the care of the child that suitability of a joint legal custody arrangement likely will not be present.53
But shared parenting arrangements should not be ordered where the parties are in substantial conflict with each other; nor should such orders be made by way of interim relief before trial if there is significant disagreement on the evidence.54On a shared parenting application, each parent bears the evidential burden of his or her position.55Courts have recognized changing parenting roles in the two-income family by means of orders for joint custody.56In Gibney v Conohan, O’Neil ACJ,
of the Nova Scotia Supreme Court, identified the following factors for consideration in determining whether a child’s best interests might be served by a shared parenting arrangement:
the proximity of the parents’ homes;
the daily availability of parents and others in the child’s extended family;
each parent’s motivation and capability;
the number of transitions between homes required of the parenting schedule;
the ease of mid-week contact;
each parent’s interest in shared decision-making;
the ease of developing a routine in each home;
each parent’s willingness to share the parenting burden;
the benefits to each parent of sharing the parenting burden;
any improvements to the parents’ standards of living as a result of sharing the parenting burden;
the parents’ willingness to access professional advice on parenting issues;
"the elephant in the room"; and
each parent’s style of parenting.57But decisions on shared parenting applications are fact-specific58and not all of the factors identified in Gibney v Conohan will be relevant in all cases.59Courts have moved away from presuming that if parties have difficulty communicating, all forms of joint custody are inappropriate.60As Baird J, of the New Brunswick Court of Queen’s Bench, observed in DLG v GDR:
279 Judges are becoming far more receptive to joint custody orders in high conflict situations.
. . .
281 Recent jurisprudence has challenged the oft repeated principle that joint custody orders should only be granted in cases where the parents can effectively communicate with each other. In fact, judges are resorting to
creative alternatives as an attempt to maintain a meaningful role for the access parent. These alternatives in high conflict situations include, but are not exclusive to, parallel parenting orders, parenting coordinators, therapeutic intervention, deprogramming of children such as is offered by the Warshak and Rand Clinic in the United States, transfer of custody from the alienating parent to the other parent or a combination of joint and shared custody orders with specified parenting clauses.61Although ongoing parental conflict is not an automatic bar to some form of joint custody or shared parenting order, the degree of conflict may be sufficiently high to preclude any such order.62In the words of Pentelechuk J in AJU v GSU,63 "[c]ommunication issues and lack of cooperation for a couple caught in the turbulence of divorce should not be compared to an impossible standard that does not exist in the most functional of families." The nature and extent of the conflict must be analyzed.64There must be an evidentiary basis for the belief that joint custody will be feasible.65For shared parenting to work, the parents must both be involved in their children’s lives.66How-ever, one parent cannot create problems with the other parent and claim sole custody on the basis of a lack of co-operation.67Joint custody may be appropriate to preserve a parent’s relationship with the children in cases where the primary caregiver objects to joint custody without just cause and there is a risk that he or she will try to marginalize the other parent’s involvement with the children.68 The fact that one parent is opposed to sharing
major decision-making authority over the children does not preclude an order for joint custody. If the court is satisfied that the parents are capable of communicating and that the child would not be adversely affected, an order aimed at enhancing parental involvement in the child’s life would generally seem consistent with the best interests of the child.69In Jordan v...