The mother appeals from an order of joint custody made at trial. There was no history of cooperation or appropriate communication between the parties respecting their child. The trial judge ordered joint custody in the hope that it would improve the parenting skills of both parties; she also ordered them to attend counselling. Each party described the other as a fit parent, however the child had never been overnight with the father and he proposed no plan for implementing his proposed shared parenting regime.
- Should the joint custody order be set aside in favour of sole custody to the mother?
Appeal allowed; sole custody granted to the mother, new trial ordered on the issue of access for the father.
Justice Weiler, writing for the court, holds the sole issue was the best interests of the child. The fact that both parents acknowledged the other to be fit did not mean that it was in the best interests of the child for a joint custody order to be made. It is not the case that one parent alleging an inability to communicate means that a joint custody order cannot be considered, but there must be some evidence to demonstrate a modicum of communication.
She also looks at the wishes of the child in joint custody matters. Holding that the wishes of the child are not synonymous with the best interests of the child, she nevertheless recognizes that their wishes must be considered, especially so the older they are. In cases such as the one at bar, with a very young child unable to express their wishes, it may be necessary to have expert evidence on how their needs would best me met.
In this case there was evidence which would allow the court to conclude there was no real communication between the parties. As the father was not seeking sole custody and joint custody was not an option, the custody order must be modified in favour of the mother.
- Courts have the power to consider joint custody despite the parties alleging an inability to communicate.
- The wishes of the child are not the same as the child's best interests, however they should be considered, especially where the child is older and better able to communicate them.