After the parties divorced the mother was given custody of their child and the husband had access two weekends a month and two weeks in the summer. After the mother became pregnant in her new relationship, the father became the de facto parent of their child. The father wanted to move outside the Halifax area for work and filed a motion to modify the custody arrangement. The parties came to 90% of an agreement on custody and access, but the father desired the arrangement be such that he was given custody and the mother access, while the mother wanted the arrangement to be joint custody.
- Can the court make an order for joint custody when the parties do not agree that this is the best option?
Joint custody order granted.
Williams analyses the caselaw on joint custody and concludes that while there have been cases which seem to indicate that joint custody is only workable where the parties agree and cooperate, the law has moved to a point where the court has significant power to craft a custody solution that works for the given situation and the Divorce Act allows the court to make such an order. Joint custody is thought to be workable only where parents agree to cooperate and are capable of doing so. It is the responsibility of the court to assess the ability of parents to cooperate in bringing up the children if that is in the children’s best interests. The court must make to an independent assessment - whether the parents are capable, from the evidence given, and not necessarily what the parents are saying in court.
- A high level of conflict is usually required to conclude that joint custody is unworkable; the court should not be blindsided by temporary hostility between the parents.
- Court can look to the evidence and make findings of fact to see if joint custody could work in a specific situation even in the absence of an agreement between the parties.