There are numerous factors and considerations courts will take into account when making an order for custody of a child. There are three types of custody orders that a court can make, which are sole custody, joint custody, and shared custody. When deciding which of these paths to take, one of the most important factors is how well the parties can communicate between one another in regards to decision making for the child. Communication between parties plays an essential role in this process, as it is directly connected to the ability of parties to co-parent with one another in the best interests of the child, which is the foundational concept and basis of all family court orders related to children. Generally, courts will be hesitant to make joint or shared custody orders between parties that are unable to communicate with one another in relation to their children.

High Conflict Relationships and Communication

Familial breakdown in most, if not all situations, leads to some level of strain or antagonism between former partners.  While high conflict situations between parents may at first appear to spell disaster for any form of joint or shared parenting order, this is not necessarily the case. When making a custody order, courts will ask not whether the parties themselves are amicable or friendly to one other, but rather are they able to set aside their differences when necessary in order to make decisions in the best interests of the child in question. This concept has been affirmed repeatedly by numerous cases, and it has been firmly established that communication between separated parties is not expected to be conflict free, and will never be held to a perfect standard. Rather, the real test for whether joint or shared custody of a child is possible is can these parties cease conflict and make decisions in the best interests of the child together when such decisions are necessary. What this means is that even parties who refuse to speak to one another on any other topics besides those related to children can potentially have joint or shared custody, if the court finds that it would be in the children’s best interests.

Willingness to Communicate

There has always been a longstanding concern in family law that a difficult party or parent may purposefully attempt to refuse to communicate or increase conflict for the very purpose of preventing joint or shared custody from taking place. Fortunately, the law as it exists in Ontario today does not act to reward such behavior.  As firmly established in the case law, when courts act to determine whether sufficient communication exists between parties, they look not only towards whether cooperation is possible between the two parents, but also if there is conflict, what is the source? If both parents are effectively being unreasonable and unwilling to cooperate and communicate in order to parent a child, then the courts will likely not allow for joint custody to take place. However, if it is clear that one parent is being both reasonable and willing to co-parent, while the other is taking clear steps to instigate hostility and prevent this, then these actions will not be allowed to benefit the party that is actively being unreasonable.  As stated by the courts, there has been an increased disposition by judges to make orders for joint custody in situations where one parent is primarily responsible for conflict, where the courts have found joint custody would be necessary to ensure a balance of power between the parties. What this means is that as a general rule, parents should always attempt to the best of their abilities to be reasonable and responsive to the other party in regards to communicating and making decisions for the children. Being open minded, responsive, and actively avoiding unnecessary hostility with a former spouse or partner when communicating in regards to children will as a general rule always have a positive impact upon a party when custody orders are being made.

In order to find out more about how your communication may affect any custody decisions made by the courts in your particular case, please call our office to speak with one of our Toronto Custody Lawyers.

Written by Adam Jaffer, Articling Student 2019/2020