Joint Custody Case Summaries

Joint Custody Case Summaries From 2001

BRIEF JOINT CUSTODY CASE SUMMARIES

2001 CASES

Wreggitt v. Belanger, Ont. C.A.

Worsening conflict between parents is sufficient to justify the variation of a joint custody order to sole custody.

2002 CASES

Mulligan v. Mowat, Ont. S.C.J.

Despite both parents’ deep love for their child, joint custody was terminated in favour of father’s sole custody. Joint custody is not workable in circumstances where parents cannot fully appreciate or understand each other’s needs and are unable to put their child’s interests ahead of their own.

Van Vliet v. Van Vliet, Ont. S.C.J.

Sole custody went to the mother because the conflict between the parents made joint custody unworkable. Mother had 100% of major decision making power, but also had a duty to promote and ensure that the father continues to have information (and access to information) about the child.

Segal v. Segal, Ont. C.A.

A joint custody order was overturned and the case was sent back to trial. The original trial judge both failed to consider the best interests of the child and also made a confusing, ambiguous order.

Lane v. Lane, Ont. S.C.J.

This case compares a number of joint and sole custody cases. Mother had primary residence and sought sole custody. Father sought joint custody. There was a low level of conflict and reasonably good communication between the parties, and so joint custody was ordered.

Lefebvre v. Lefebvre, Ont. C.A.

Father applied for a stay of a joint custody order pending his appeal for sole custody. Father relied on OCL report that favoured him having sole custody. The stay was denied because the appeal judge was not convinced that the joint custody order would cause irreparable harm to the child or even that the balance of convenience favoured the stay.

2003 CASES

Rideout v. Cobbett, Ont. S.C.J.

This is yet another case where the court found that conflict between the parties made joint custody unworkable. What stands out about this case is that the court acknowledged that there are cases where the court will order joint custody where there is conflict between the parents, but that in this case, the parents’ inability to communicate with each other prevented a joint custody order.

2004 CASES

Somerset v. Somerset, Ont. S.C.J.

The acrimony between the parents again prevented the court from ordering joint custody or even a parallel parenting regime. The mother was awarded sole custody, despite the fact that the court found that the parents were both loving and capable and that the mother’s chief defect as a parent was actively limiting the father’s participation in the children’s lives.

2005 CASES

Kaplanis v. Kaplanis, Ont. C.A.

Kaplanis and the following case, Ladisa, were heard on subsequent days and are both cases of mothers appealing final joint custody orders. In Kaplanis, the joint custody order was set aside, as there was no history between the parents of co-operation and appropriate communication, and also because the trial judge wrongly made the order in the hopes that it would motivate the parents to improve their parenting. The fact that both parents acknowledge each other as good parents is not enough to support a joint custody order. The court must consider the best interests of the children, and the father failed to bring evidence at trial that showed how joint custody would be in his children’s best interests.

Ladisa v. Ladisa, Ont. C.A.

The mother’s appeal of the joint custody order was dismissed. In comparison with Kaplanis, the Ladisa case involved older children, fuller evidence about the father’s parenting, a much more active father, and a history of the parents being able to put aside their differences for the sake of their children.

Maceus-Agyekum v. Agyekum, Ont. S.C.J., Ont. C.A.

Trial Decision

Appeal Decision

The court ordered joint custody of three young children over the objections of the primary parent (the mother, who retained primary residence). Years prior to their separation, the father had pled guilty to assaulting the wife and had taken anger management classes. The court found that the father was a good parent and that his involvement in the children’s lives was in their best interests. The judge remained seized of the matter in case the custody regime needed to be reviewed by the court. The mother brought an appeal of the decision in 2006, which was unsuccessful.

Roy v. Roy Ont. C.A.

As in Kaplanis, the parents could not cooperate and communicate effectively, and so joint custody was overturned (though equal time was upheld).

D.L.C. v. R.J.M., Ont. S.C.J.

Father’s request for joint custody was denied. The court found that joint custody would be unworkable because of the following communication related issues: 1) the father had the tendency to bully the mother, 2) the father continued to denigrate the mother in the child’s presence, and 3) the parents had incompatible approaches to communication. Sole custody to mother with a detailed time-sharing plan. The court’s joint custody concerns did not apply to the time sharing issue.

Cook v. Sacco Ont. S.C.J., Ont. C.A.

Trial Decision

Appeal Decision

Trial judge rejected assessor’s recommendation of interim sole custody to father and awarded joint custody. Mother was a good parent except for her problems with addiction. Court found that sole custody would establish a status quo that would be prejudicial against the mother, and that joint custody would motivate her to overcome her issues with addiction. The father appealed and was unsuccessful.

2006 CASES

Ursic v. Ursic, Ont. C.A.

The Court of Appeal heard a mother’s appeal of a joint custody/parallel parenting order. The court considered evidence of how the parallel parenting regime had been working from the date of the order to the date of the appeal (it had been going well, according to the assessor). The court of appeal restated the test for appellate review of the best interests of the child. The court deferred to the trial judge’s analysis and the appeal was dismissed.

Garell v. Habib, Ont. S.C.J.

This case deals with the meaning of joint custody. It is not one parent informing the other of decisions made; it is both parents sharing information, consulting with each other, and discussing the issue before a decision is made. Unilateral decision making is effectively a repudiation of a joint custody arrangement.

2007 CASES

Somerville v. Somerville, Ont. C.A.

Sole custody order overturned on appeal. It was an error in law for the trial judge to put undue emphasis on parents’ conduct and inadequate emphasis on children’s best interests.

Kenney v. Kenney, Ont. S.C.J.

The parties settled primary residency, access, and all support and property issues. They had a trial only on the custody issue. The father wanted joint custody and the mother wanted sole custody. The court reviewed the evidence and found that the communication between the parents was so conflicted that joint custody would not be in the best interests of the children.

The following are the proper legal citations for the cases listed above:

Wreggitt v. Belanger (2001), 23 R.F.L. (5th) 457 [2001] O.J. No. 4777, 110 A.C.W.S. (3d) 95 (Ont. C.A.)

Mulligan v. Mowat, [2002] O.J. No. 1270 (Ont. S.C.J.)

Van Vliet v. Van Vliet, [2002] O.J. No. 1458 (Ont. S.C.J.)

Segal v. Segal (2002), 162 O.A.C. 119, 26 R.F.L. (5th) 433, [2002] O.J. No. 2564, 115 A.C.W.S. (3d) 274 (Ont. C.A.)

Lane v. Lane,[2002] O.J. No. 4768 (Ont. S.C.J.)

Lefebvre v. Lefebvre (2002), 167 O.A.C. 85, [2002] O.J. No. 4885, 119 A.C.W.S. (3d) 79 (Ont. C.A.)

Rideout v. Cobbett, [2003] O.J. No. 4086, 126 A.C.W.S. (3d) 83 (Ont. S.C.J.)

Somerset v. Somerset 2004 CarswellOnt 2100, [2004] W.D.F.L. 408, (Ont. S.C.J.)

Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620, 194 O.A.C. 106, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 CanLII 1625, 136 A.C.W.S. (3d) 860 (Ont. C.A.)

Ladisa v. Ladisa (2005), 193 O.A.C. 336, 11 R.F.L. (6th) 50, [2005] O.J. No. 276, 136 A.C.W.S. (3d) 872 (Ont. C.A.)

Maceus-Agyekum v. Agyekum, [2005] O.J. No. 1306, 138 A.C.W.S. (3d) 503 (Ont. S.C.J.). Appeal at: [2006] O.J. No. 1510 (Ont. C.A.)

Roy v. Roy [2006] O.J. No. 1872, 27 R.F.L. (6th) 44, 148 A.C.W.S. (3d) 266, 2006 CarswellOnt 2898 (Ont. C.A.)

D.L.C. v. R.J.M., [2005] O.J. No. 5500, 144 A.C.W.S. (3d) 494, 2005 CarswellQue 9127 (Ont. S.C.J.)

Cook v. Sacco (2005), 18 R.F.L. (6th) 308, [2005] O.J. No. 3439, 2005 CarswellOnt 3580 Appeal: (2006) 217 O.A.C. 90, 32 R.F.L. (6th) 1, [2006] O.J. No. 4379, 152 A.C.W.S. (3d) 657, 2006 CarswellOnt 6736 (Ont. C.A.)

Ursic v. Ursic (2006), 32 R.F.L. (6th) 23, [2006] O.J. No. 2178, 149 A.C.W.S. (3d) 38, 2006 CarswellOnt 3335 (Ont. C.A.)

Garell v. Habib, [2006] O.J. No. 567 (Ont. S.C.J.)

Somerville v. Somerville, 2007 ONCA 210, 36 R.F.L. (6th) 7, [2007] O.J. No. 1079, 156 A.C.W.S. (3d) 390, 2007 CarswellOnt 1697 (Ont. C.A.)

Kenney v. Kenney, [2007] O.J. No. 2564, 158 A.C.W.S. (3d) 776 (Ont. S.C.J.)