l
It
FAMILY LAW
CHAPTER 7
AN OVERVIEW OF JOINT CUSTODY AND
A DISCUSSION OF
MOBILITY RIGHTS
Materials prepared by His Honour Judge paul S. Neidermayer
of the Family court, Dartmouth, Nova Scotia for Continuing
Legal Education, May 26, 1990 •... ___ ._. ____ ~_
Materials prepared by Elizabeth Jollimore of
Stewart McKelvey Stirling Scales, Halifax,
Nova Scotia for Continuing Legal Education,
May 26, 1990.
The
state
of
law with
respect
to
joint custody
province and,
indeed, in this country, is uncertain.
signals
been
have
Parliament
of
put
Canada.
out
by
both
This
the
in this
Confusing
Legislature
confusion
is
and
the
to
by
added
interpretations the courts have made as to whether or how joint
custody should be implemented.
of
the
superior courts,
Philosophical statements by most
including the Appeal
Division of
the
Supreme Court of Nova Scotia, would indicate that joint custody can
only be ordered if there is agreement between the parties.
From reading the literature and examining the case law, it is
my view that this may be rather a simplistic approach conveniently
followed by counsel and the courts.
I will also suggest that joint
custody is misunderstood with respect to its definition, and that
there are a number of situations promoted as joint custody which
are, in fact, something entirely different.
Thus, it is necessary
to know the different types of orders which are granted, and the
interpretations which must be put to them.
While courts and
counsel are not always precise in their terminology, quite often
the numerous permutations and combinations regarding a
custody
disposition are stated in a decision or set out in an order.
It may surprise some to know that from the time of the birth
of a child until an agreement or court order is put into effect,
the child and the parents are subject to a law which states that
- 2 -
joint custody is the rule and not the exception.
section 18(4) of
the Family Maintenance Act, S. N. S. 1980, c. 6 states:
Subject to this Act, the father and mother of a child are
joint guardians and are equally entitled to the care and
custody of the child unless otherwise
(a)
provided by the Guardianship Act; or
(b)
ordered by a court of competent jurisdiction.
It is my opinion that agreements, be they express or implied,
can also sever the joint custody relationship.
At this point, an
important caveat must be stated by way of a footnote.
For the
purposes of criminal law, s. 18(4) does not appear to mean what it
states.
Parents' cannot rely upon that provision if they intend to
deprive the other parent of "possession" of the child:
(1984) 63 N. S. R. (2d) 35 (N. S. S. C. A. D.).2
information
is
provided
so
that
the
R. v. Cook
This collateral
practitioner
does
not
mistakenly advise a client on the effect of s. 18(4) of the Family
Maintenance Act.
What appears to be clear by provincial legislation (yet most
confusing when applying R.v. Cook) is extremely unclear in federal
legislation.
The Divorce Act (1985)
See appendix.
2
See appendix.
SSe
16(1) and (4) state:
- 3 -
16. (1) Order for custody.
A court of competent
jurisdiction may, on application by either or both
spouses or by any other person, make an order respecting
the custody of or the access to, or the custody of and
access to, any or all children of the marriage.
16. (4) Joint custody or access. The court may make an
order under this section granting custody of, or access
to, any or all children of the marriage to anyone or
more persons.
It is important to note here that the words, joint custody or
access are marginal notes, and according to the Interpretation Act,
have no legislative significance whatsoever.
This means the only
real direction the court can draw from these provisions are the
words, "any or all children of the marriage," and "anyone or more
persons."
This somewhat vague direction from the Parliament of
Canada is the only promotion given to the concept of joint custody.
I will suggest that most people do not really know what joint
custody means.
an attitude.
In my view, joint custody can be best described as
It is an attitude of cooperation, communication,
awareness, consideration and, most importantly, focusing upon the
welfare and needs of the children.
It is an attitude which can be
promoted, fostered and nurtured by mediators, counsellors, lawyers
and the courts.
It is an attitude with which we give little
opportunity for its development and growth.
It is a positive
- 4 -
attitude, and is in stark contrast to a non-joint custody situation
which is usually most negative in its attitude and causes more
litigation than a joint custody resolution will.
In a book by Morgenbesser and Nehls entitled, Joint CustodY7
An Alternative for Divorcinq Pamilies, the authors discuss both the
conception and misconception of joint custody:
There has been a considerable amount of confusion about
joint custody. Perhaps the most frequent assumption is
that it always means sharing the child's physical
presence equally. Recent newspaper and magazine articles
have contributed to this confusion by suggesting that
joint custody is an arrangement in which children spend
equal amounts of time with each parent.
For instance,
an article in Newsweek magazine begins, 'Every Wednesday
morning, the Miyoshi children • • • eat breakfast with
their father in his house, then go over to their mother's
pink house a quarter of a mile away.
There they stay
until Sunday morning when they make the trip back to
their father's again' (Kellogg, 1977, p. 56). A New York
Times Magazine article states, 'Six-year old Tommy
Mastin, the central figure in a controversial childrearing arrangement known as joint custody,
leads
something of a double life in Gainsville, Florida.
On
Monday, Wednesday and Sunday Tommy lives with his father
at Oak Forrest, a luxury apartment complex on the city's
south side . • • On Tuesday, Thursday and Saturday, the
boy lives with his mother in the older north side
neighborhood of 26th Street • • • Fridays vary, depending
on his plans and those of his divorced parents' (Dullea,
1976, p. 24). Charlotte Baum writes in a New York Times
Magazine article (1976), 'Over the past five years, my
three children have been living in two different
households.
One of them is mine and the other is my
former husband's' (p. 44).
Although these articles do
mention that a central idea of joint custody is joint
decision-making and responsibility, they tend to focus
on specific living arrangements. This type of publicity
reflects a tendency to associate joint custody only with
arrangements where the child spends approximately half
of his or her time with one parent and half with the
other. While this is certainly a component of many joint
custody arrangements, the central issue is not how much
-
5 -
time the child spends with each parent but that parents
have equal rights and responsibilities for child-rearing.
We cannot repeat often enough that joint custody has been
and will perhaps continue to be defined in numerous ways.
The term 'joint custody' means different things to
different people. However, as we will be discussing it
in this book, it is the concept of equal rights and
responsibilities which differentiates joint custody from
sole custody. The legally enforceable, equal rights and
responsibilities concept attempts to guarantee that both
parents have significant influence upon their child's
growth and development.
There are a number of legal words and phrases bandied about
by the courts and lawyers,
or referred to in legislation and
li terature when discussing or referring to custody.
Some are
stated without any precision or on the assumption that the reader
or listener will be familiar with the terminology.
Therefore I
think it is of some value to define the terminology.
custody3
This is the legal term referring to the combination
of rights, privileges and obligations accorded to a person, usually
a parent, for the care and well being of another, such as a child.
It is interpreted to include the responsibility for the care,
planning,
and decision-making respecting a child.
It usually
encompasses the areas of socialization: discipline: health care:
educational, religious and vocational training: and the provision
of food, shelter, clothing, and other essentials for the security
and safety of the child.
3
See appendix.
Unless other designation is specifically
- 6 -
made to the contrary, the custodian is also obliged to provide a
home and the day-to-day guidance and decision-making for the child.
Most custodial orders provide an award of custody rights to one
parent, but are silent as to others.
This is often interpreted to
mean that the second parent has no rights other than what appears
in the order, which is usually only access, and the non-custodial
parent may be treated as a legal stranger to the child.
(See also
Sole Custody infra p. 7)
Guardianship
This mainly impacts upon the property and estate
of a child, but also includes custodial rights.
recognized
that
the
guardian
custodial
responsibilities
has
to
the
right
another,
responsibility remains with the guardian.
mainly from probate law.
The courts have
to
but
delegate
the
the
ultimate
Guardianship arises
While its function has been relegated to
more of a financial nature, there are still custodial connotations
connected
to
it.
If
no
specific
designation
of
a
physical
custodian is made to the contrary, the guardian is also obliged to
provide a home and the day-to-day guidance and decision-making for
the child.
Care and Control refer to the rights and responsibilities for
maintaining a home for the dependent on a day-to-day basis.
It is
the de facto and day-to-day physical caring for a person and can
be split from custody.
It is common in child protection
- 7 -
legislation to split the function of care and control given to a
foster parent or natural parent while the custody remains within
an agency.
Sole custody provides for the full vesting of custodial powers
in one parent to the exclusion of the other.
It is a term which
has been incorporated with the word "custody."
suited
in
cases
of
parental
abandonment
or
It is primarily
neglect,
and
is
sometimes used in that context under the Children's Services Act.
It is often found in agreements and minutes of settlement.
This is the concept or arrangement legally
Joint custody
recognized
in
which
separated
parents
continue
to
enjoy
the
parental rights and responsibilities which they had during their
marital relationship.
From the child's point of view,
it is,
perhaps, the most desirable form of custody because it allows and
presumes that the parental powers will continue to be exercised
cooperatively.
Joint parental decision-making is encouraged in
areas of social, health, educational and religious development of
the child.
In a joint custody arrangement, there is a specific
determination as to residential care.
Day-to-day responsibilities
for the children may remain with one parent, may alternate on a
periodic basis or may be divided between parents, with one child
in the daily care of one parent and the other child in the care of
the other parent.
Major decision-making by the parents is by
-
consensus.
8 -
Usually the parents provide that if they are unable to
agree on an issue of significance to the children, they will seek
assistance
by
competent
counsellors
or
the
use
of
mediation.
Litigation is discouraged as the least desirable form of problem
solving since that polarizes the parties; it places the child in
the
center
of
cooperation.
the
battle
and
discourages
further
parental
It is a continuation of the parent/child relationship
the parties had during the marriage or common-law relationship
after the parties have separated.
Shared custody or Co-custody is an emerging concept, mainly
in
the
united
states,
in
which
both
persons
continue
to
be
responsible at all times for all decisions regarding the care and
upbringing of the children where the parties have a close personal
relationship with each other in which the children may flow freely
between them.
Because of the nature of the relationship of the
parties,
are
they
not
necessarily
separated.
Shared
custody
arrangements are found in situations where the person exercising
parental authority has not,
marital relationship.
will
not,
or cannot enter into a
Examples would include homosexual or lesbian
relationships or those in which the parent shares a responsibility
with his or her own parent, sibling or non-related friend.
It is
a joint custody arrangement between persons, one of whom is not
usually considered a legal parent.
-
9 -
Alternating or Divided custody is the arrangement for the
physical residence of the children, which is provided in turn by
each of the parents.
It is a form of joint custody in that both
parents continue exercising their parental privileges and
responsibilities
sequentially.
although
they
do
so
independently
and
In this situation, it is common for the parents to
have agreed to joint custody.
The parent having physical custody
makes all necessary day-to-day and significant decisions while the
child is in his or her care.
The difficulty with this concept is
that it permits a parent to make major developmental decisions
without reference to the other parent unless it is specifically
prohibited.
It
is
usually
the
least
desirable
of
all
the
arrangements unless the parents have a very clear sense of the
position of the other parent and has a fair degree of trust in the
other person.
split custody is the arrangement whereby the physical custody
of the children is divided between the parents on a continuous
rather than an alternating basis.
For example, one child may be
awarded to the care of one parent on a permanent basis, and the
remaining children awarded to the care of the other parent.
While
each parent may exercise his or her rights and responsibilities as
a sole custodian, as to the children in his or her care,
split
custody can still invite the application of joint custody so as to
maximize the continuing relationship of the children.
If that took
..,. 10 -
place, it would be described as joint legal custody with split
residential care.
The questions respecting joint custody to be determined now
are:
Where have we been?
Where are we now?
Where are we going?
certainly, the history of joint custody in this country has not
been an encouraging one.
When Madam Justice Boland launched the
first significant joint custody decision in Baker v. Baker (1978),
3 R. F. L. (2d) 193, she was quickly torpedoed by the Ontario Court
of Appeal in Baker v. Baker (1979), 8 R. F. L. (2d) 236.
Another
salvo was fired by that same court in Kruger v. Kruger (1979), 11
R. F. L.
(2d) 52.
Appeal Division,
N. S. R.
(2d)
Unfortunately, the Nova Scotia Supreme Court,
followed suit in Zwicker v. Morine (1980), 38
236.
In that case the Appeal Division stated at
pp. 246 - 247:
A joint order may be helpful, and not harmful, only
where the parents agree to cooperate and are capable of
cooperating. paradoxically, such an order would thus be
unobjectionable only when the parents are the kind for
whom no controlling order is necessary at all! For such
parents, an order would merely affirm or approve their
agreement as to how they propose to bring up their
children. Such parents, and their children, do not need
to care whether any order is issued, or whether a formal
order purports to give legal right of custody to the
father, to the mother or to both.
The concept of joint custody of a child by separated
parents seems to me to overlook the traditional role of
custody as a matter of physical possession and control,
a question of which parent shall have the child. If the
parents are living apart, I have difficulty in seeing how
they both can have custody at the same time. If 'care
and control' is given to one parent by a joint custody
order, what practical right is left with the noncontrolling parent? (my emphasis)
-
11 -
Unless the parties are not contesting custody and
agree on 'joint custody' or some special arrangement, a
judge acting under the Divorce Act is usually merely
called upon to decide which of the two competing parents
shall have the child.
In Nova scotia a supreme Court
judge on divorce is not yet able to use, as in England,
powers flowing from modern infant guardianship and
matrimonial property legislation and is restricted to
dealing with contested custody in divorce on the
traditional basis.
Regrettably, the rhetorical question, "What practical right
is
left with
the
non-controlling
parent?"
either
reflects
an
opinion or is interpreted to mean that basically there is nothing
left to decide after one parent is given care and control of a
child.
By virtue of the definitions I have given to the various
terms, it is quite obvious there are many decisions which still can
be made in a joint custody order, or even carved out of a joint
custody
medical,
order,
if
necessary.
developmental,
Such
religious,
location can still be addressed.
concerns
as
educational,
recreational and mobility or
Some decisions could be made
jointly; some could be made individually, but if the parties have
a
strong area
of disagreement on one particular
issue,
it is
possible to delegate that decision-making on that particular issue
to one parent, butall other decisions would be made jointly.
due respect to the Appeal Division,
with
it is a simplistic approach
which is taken in zwicker v. Morine and not an analysis of what the
terms, "custody" or "joint custody" are intended to be.
.,. 12 -
What the Appeal Division did not address in Zwicker v. Morine,
nor did the Court of Appeal in Baker v. Baker, was the principle
of the welfare or best interests of the child.
Again,
the
provincial legislation, compared to the Divorce Act (1985), is more
helpful.
section 18(5) of the Family Maintenance Act states:
18(5) In any proceeding under this Act concerning care
and custody or access and visiting privileges in relation
to a child, the court shall apply the principle that the
welfare of the child is the paramount consideration.
On the other hand, the Divorce Act (1985) is far more general in
its wording and does not direct itself toward the doctrine of the
best interests of the child as being paramount.
Sub-sections
16(8) (9) and (10) direct the courts as follows:
(8) Factors. In making an order under this section, the
court shall take into consideration only the best
interests of the child of the marriage as determined by
reference to the condition, means, needs and other
circumstances of the child.
(9) Past conduct. In making an order under this section,
the court shall not take into consideration the past
conduct of any person unless the conduct is relevant to
the ability of that person to act as a parent of a child.
(10) MaximUJll contact.
In making an order under this
section, the court shall give effect to the principle
that a child of the marriage should have as much contact
with each spouse as is consistent with the best interests
of the child and, for that purpose, shall take into
consideration the willingness of the person for whom
custody is sought to facilitate such contact.
It is obvious the Nova scotia legislation both promotes the
concept of joint custody, as well as not requiring collateral
- 13 -
reasons or circumstances having an equal position to the best
interest
concept,
although
it
supersedes ss. 16(9) and (10).
could
be
argued
that
s.
16(8)
The Appeal Court decisions in cases
like Baker, Kruger and Zwicker v. Morine can be considered as being
decided upon the best interests of the parents rather than the best
interests of the children.
To sum up the attitude, the courts are
saying that no order of joint custody should be made unless the
court is satisfied that the parties want to and will cooperate in
the decision-making concerning the child.
This view was continued
in Gordon v. Keyes (1985) 67 N. S. R.(2d) 216 (N. S. S. C. App.
Div.) at p. 221:
In my opinion, the present case is not one of those
cases in which there is a
combination of rare
circumstances such as might make an order for joint
custody appropriate.
I base that view on my impression
of the parties and their dispositions and ability to
cooperate with one another. First I will note that while
the parties evidently do manage civility and courtesy in
their dealings with one another, there would seem to be,
at least on the part of the respondent, an underlying
animosity and there is, I feel, a resentment on both
sides. Those underlying emotions have surfaced from time
to time so as to complicate even the existing
arrangements as to access. I am thinking, of course,
of the so-called letter to 'friends and friends', and
other bitter lapses in correspondence and documents
presented by the respondent.
On the other side of the
coin there have been certain outbursts of temper on the
part of the petitioner.
Second, I feel there are differences of temperament
and that the parties have different concepts about child
rearing which, on the one side, lead the respondent to
be lenient in his approach . • • perhaps influenced by
the fact that he has not been the custodial parent
. • • and the petitioner, by her own statement, is
inclined to be more of a disciplinarian. It is conceded
that these differences have created problems
difficulties of adjustment when the children have
.,. 14 -
returned from visits to their father.
My expectation
would be that under an order of j oint custody the
implication and consequences of those differences between
the two parents would have more serious effects on the
children, in fact I believe they would have harmful
effects upon the children in the long run.
It was basically a restated position of the Supreme Court when
applying the Divorce Act
(1988) 85 N. S. R.
(1985)
where
in Donnelly v.
Donnelly
(2d) 256, Glube, C. J. effectively ruled that
unless both parents are willing to cooperate in discharging their
duties toward the children and one another,
then j oint custody
orders are to be disapproved.
I
would
suggest that
the better
approach to
take
is
to
determine what type of order is in the best interests of the
children and then to rule on its workability.
One has to not only
be concerned about the facts of the child/parent relationship, but
also about the definitions of custody and joint custody and the
literature which is available on the subject.
It must be
recognized that joint custody will not work in every situation, but
it sometimes is easily dismissed as unworkable by the parties,
their counsel, or the courts simply because someone presumes or
states that it is unworkable.
Often there is no examination of the
benefits which will befall to the children and even the parties.
- 15 -
If the parents are agreeable to a joint custody order and will
cooperate in making it work, then it should be made.
Where, on the
other hand, the parents do not agree as to the type of the order,
an assessment should be made, in spite of the disagreement of the
parents, to determine what the areas of disagreement are and how
they can be addressed or facilitated.
of course,
Mediation and conciliation,
is the best route to follow.
If the parties are
amenable to discussing their differences rather than litigating
them, then, in all likelihood, joint custody will work.
point it is obvious to many that the need for a
At this
court-based
mediation service as a component to the process is desirable.
To take such an approach is not a new idea.
not widely pUblicized
or known,
but
appears
However, it is
to
be
taking
a
foothold.
There are a number of cases where j oint custody has been
ordered even though the parents have not agreed to it.
In these
cases, it was determined that it was in the best interests of the
child to order joint custody:
65
Ladoucer
(1986),
3
48
(1985) ,
R. F. L.
(3d)
R. F. L.
(2d) 8 (Nfld. U. F. C. ) : D_chuJt v. D_chuJt (1986), 73
(Que.
S.
c. ) :
Dussault v.
Parsons v.
Parsons
A. R. 161 (N. B. Q. B. ) : Boody v. Boody (1983) , 32 R. F. L.
(2d)
396 (Ont. Dist. ct.) : Fonbine v. Fonbine (1980), 18 R. F. L. (2d)
235 (Man. C. A.): Gaudin v. Gaudin (1986), 76 N. B. R. (2d) 143
- 16 -
(N. B.
Q.
B.); Anson v. Anson (1987), 10 B. C. L. R. (2d) 357
(B. C. Co. ct.)4 and Murray v. Murray (1989), 93 N. S. R. (2 d)
66 (N. S. F. c.).
See also, Joint CUstody in a Leqa1 context:
Some Observations, Judge R. James Williams and Nancy J. Bateman,
1988, Federation of Law Societies Summer Program on Family Law,
Montreal, P. Q.
When·dealing with the pami1y Maintenance Act, I express the
view in Murray v. Murray,
that the burden is upon the person
requesting sole custody to prove that it is in the interest of the
child to reverse the joint custody presumption as contained in the
Act.
I recognize that that is not the burden in the proceedings
under the Divorce Act.
I would go so far as to suggest that
counsel, if not the courts, should require the parties to seriously
address joint custody as an appropriate alternative, and not to
summarily dismiss it as a fancy option.
Again, if mediation was
a component of the court process, such as exists in a Unified
Family Court, then the parties would be required to address joint
custody as a viable solution or give justification for a non-joint
custodial order.
It cannot be stressed enough the importance of mediation in
a joint custody solution.
4
See appendix.
It is optimal when commencing the
~
17 -
attitudinal foundation required, and it is nearly essential, if not
mandatory, in resolving continuing conflicts.
While mediation may appear to be the antithesis of litigation,
the adversary system does not lend itself well to the joint custody
option.
If the objective of counsel is to serve the client, and
serve the client well, the lowering of the level of hostility,
bitterness, rancour, and disappointment which results in separation
and divorce, then mediation assists that objective.
Joint custody
can maintain that reduction of enmity if the parties can learn to
grow and develop from the separation.
Before everybody
proceeds
to
tout
joint
custody as
the
panacea, or to dismiss it as an insignificant concept, there should
be
an
examination of
the pros
and
cons
so that
a
complete
evaluation can be made when advising a client or litigating a case.
I see some of the positives as follows:
1.
Joint custody provides an additional alternative for the
court to use
in its efforts to deal with the best
interests of the child.
2.
Joint custody arrangements permit the court to more
accurately reflect the current trend in our society in
which both parents are expected to take an active role
-.18 -
in rearing the children.
A court order of joint custody
demonstrates to the parents that the court recognizes
that each parent has an important role to play in their
children's lives.
The increased feeling of parental
responsibility may result in more faithful compliance
with maintenance orders and with orders made for the
welfare of the children.
A joint custody order, when
appropriate, provides the opportunity for the parents to
develop the
decisions
on
ability to manage
their
own
with
custody conflicts and
less
need
for
outside
intervention.
3.
Since fault has been eliminated from the Divorce Act and
our maintenance legislation,
joint custody provides a
method toward diminishing the concept of fault in custody
matters.
4.
A joint custody arrangement can provide more adequately
for
the
children's
needs
when
they
attachment to both of their parents.
have
a
strong
Joint custody
provides a greater opportunity for both parents to have
a means to provide guidance and direction for their
children.
Successful joint custody arrangements should
decrease the feeling of loss that many children feel when
it seems that they have lost a parent in the separation
~
19 -
or divorce, and it will decrease the pressure for them
to choose one parent over the other.
5.
Joint custody provides the parties and the court with an
opportunity to provide more latitude for both parents to
have a voice in custody decisions.
The assumption is
that two parents will make better decisions than one
parent can make.
6.
A joint custody order will often help parents to believe
that their custody dispute was decided in a fair and
equitable manner and thus increase their ability and
motivation to make the custody arrangement work for the
benefit of the family.
7.
An order for joint custody should relieve a single parent
of the, sometimes, overwhelming responsibility to care
for children by one's self.
To be able to assist in the
upbringing and share the burdens with the other partner,
especially when a crisis occurs with respect to child
rearing, should minimize the frustration that a single
parent frequently experiences.
8.
Using
joint
custody
as
an
alternative,
in
some
situations, will provide the family with a chance to
... 20 -
avoid a financial and emotional expense associated with
a custody trial.
9.
A j oint custody order permits each parent to consult with
school, medical and other authorities with full parental
status.
a
joint
There is often a loss of dignity and pride when
custody
order
is
not
made.
Rancour
and
bitterness can be avoided when recognition is given to
parental status.
There are some negatives which have to be considered as well.
1.
Although the literature is starting to come forward,
there is still not a lot of knowledge of the full impact
of joint custody arrangements.
A number of questions
still require an answer, such as:
What are the long-term effects upon a family and the
children with respect to joint custody?
Is j oint custody better for younger children or
should it be exclusively for older children?
Is there a continuity in commitment which can be
sustained by the parties and the children over the
course of the joint custody period?
.,. 21 -
How many breakdowns in j oint custody disputes should
one have before deciding on a sole custody order?
What happens if mediation is not readily available?
2.
Since
many
parents
believe
that
their
personifies themselves as a failure,
separation
there could be a
heightened feeling of inadequacy or failure if the joint
custody arrangement breaks down,
further
loss of esteem.
destructive
interpersonal
This
thus resulting in a
could result
behaviour
and
a
in more
resultance
negative parenting.
3.
If j oint custody is agreed upon at the time when the
parties are still hostile, the children are likely to
experience a great deal of distortion and pulling apart
as they move back and forth between hostile parents.
It
is quite likely that hostility will increase and escalate
to a point where more damage is done than the good that
was intended to be accomplished.
4.
For some it will be more expensive to set up the two
homes
that
arrangement.
may
be
required
in
a
joint
custody
- 22 -
5.
Joint
custody
may
not
be
a
long-term
solution
for
families where there is a re-marriage or are-location.
The
introduction
of
a
step-parent
or
long
distance
communication can have a negative or neutralizing effect
upon the arrangement.
6.
Parents, courts, lawyers, social workers and others may
agree to j oint custody to expedite the separation in
order to avoid dealing with the real issues and giving
little attention to the interests of the children.
For
those
practitioners
especially the children,
who
believe
would be properly
their
clients,
served by a
and
joint
custody agreement or minutes of settlement, I would suggest that
some or all of these clauses should be inserted:
Joint Legal Custody.
Each of the parents are fit and
proper persons to have the responsibility for the care
and custody of the children. The parties should be and
hereby are awarded the joint legal custody of the
children.
Residential Care.
The residence of the children shall
be with (the Applicant/Petitioner or Respondent) and
(s)he shall have the primary day to day responsibility
for the guidance and upbringing of them.
(Alternative
language may be used where there is to be a splitting of
custody or an alternation of physical care.)
Delegation of Physical Care to other Parent.
It is
understood by the parents that although a designation of
residential care of the children is made here, each of
the parents may freely delegate or entrust to the other
the care of the child(ren) for whom he or she would
otherwise have the primary responsibility, for occasional
or frequent alternating periods so that the child (ren)
may continue their joint growth and development with each
other and under the supervision of each of the parents.
.,. 23 -
Definition of Joint custody. It is the intention of the
parents in agreeing to joint legal custody, that each of
them shall continue having a full and active role in
providing a sound moral, social, economic and educational
environment for the children and continue that support
which each child has received to date. The parents shall
consult with one another in substantial questions
relating to religious upbringing, educational programs,
significant changes in social environment, and nonemergency health care of the children. In accepting the
broad grant of privileges conferred by this joint
custodial arrangement upon each of the parents, they
specifically recognize that these powers shall not be
exercised for the purpose of frustrating, denying, or
controlling in any manner the social development of the
other parent. The parents shall exert their best efforts
to work cooperatively in future plans consistent with the
best interests for the children and in amicably resolving
such disputes as may arise.
The
parents agree that from the date of (e.g. one week after
the termination of the school year until the date two
weeks in advance of the commencement of the ensuing
school year), the residential care of the children shall
be changed as to each child from the designation above
to the care of the other parent, who shall for that
period of time have the primary day to day responsibility
for the guidance and upbringing of the children.
Alternation of custody During Summer vacation.
In the event that the parents
alone cannot resolve a conflict, they agree to seek
appropriate, competent assistance. The matter shall be
referred for mediation (if that is not successful, for
arbitration) to Family Court, a counselor, or to a lawyer
or professional person skilled in the area of resolution
of the problems of children and their families.
This
procedure shall be followed to its conclusion prior to
either party seeking relief from the court. (And: While
the dispute is being resolved, the residential parent
shall continue making such day to day decisions as are
necessary, but shall take no substantial action in the
area of the disagreement which would prejudice or take
unfair advantage of the other parent by use of the
residential status to his/her own benefit.)
Mediation/Arbitration.
Each of the parents shall exert every effort
to maintain free access and unhampered contact between
the children and the other parent; and to foster a
feeling of affection between the children and the other
Affections.
-
24 -
parent.
Neither parent shall do anything which would
estrange the children from the other; which would injure
the opinion of the children as to their mother or father;
or which would impair the natural development of the
children's love and respect for each of the parents.
Removal from Jurisdiction. Neither parent shall move the
permanent residence of the children from (name the area: .
city, town, county or province) or remove them from this
area for a period in excess of fourteen days without the
prior consent of the other parent or approval by the
court after prior notification to the other parent of
such court hearing.
Review.
The terms of joint custody and the amount,
duration and times of the shared time shall be
renegotiated and/or reviewed upon the happening of any
of the following contingencies:
a.
b.
c.
d.
e.
Remarriage by one of the parties;
Co-habitation by one of the parties with a person
of the opposite sex;
A major or SUbstantial change in the lifestyle of
one of the parties;
Removal from the immediate geographic area of the
residence of one of the parties;
Mental or physical disability or impairment of one
of the parties.
Parents, counsel and the courts should not be discouraged or
diverted from a pursuit of examining joint custody simply because
parties apparently disagree from time to time.
As in nearly every
close personal relationship, there will be differences of opinions,
and there will be disagreements.
But if the parents are truly
committed to the welfare of their children and have a genuine love
and affection for them, it is possible for them to put aside the
differences they have about each other in order to accomplish a
mutual child-rearing solution.
In the past, courts have run from
~
25
~
the joint custody solution when there has been even the merest
whiff of the odour of disagreement between competing parents.
takes
a
concerted
effort
by
all
to
cut
through
some
of
It
the
overburden to come to realize that there are other solutions which
are more positive and beneficial.
The one component which is
sometimes very often needed and essential is that of mediation.
Unfortunately, because at this time a Unified Family Court does not
exist in this province with the counselling and mediation arm
attached to it, there is a built-in disincentive to deal with joint
custody as a viable alternative.
However, with some ingenuity and
tapping of available resources, there is an ability to craft and
mould a joint custody solution.
Dartmouth, N. S.
May 10, 1990
APPENDIX
1.
For the purposes of the Criminal Code,
definition of parent,
since there is no
reference must be made to provincial
legislation; therefore, common-law spouses are parents even
though the child may not be considered "legitimate".
[There is no) judicial consideration of the
meaning of "parent" in either s. 250.2 (1) [now
s. 283 (1») or in any of the nearby sections
where it has a longer history, e.g., s. 249
[now s. 280). At common law its meaning prima
facie is confined to the lawful mother and
father of the party spoken of: see Bouvier Law
Dictionary (Rawle's revision) 1897 or any
current
dictionary.
In
exceptional
circumstances,
the common law apparently
recognized the rights of a father of a child
born out of wedlock to custody after the mother
and the Family Maintenance Act now puts them
on an equal plane.
R. v. Levesque (1984) 15 C. C. C. (3d) 413 (N. S. Co. ct.) at
pp. 414-15.
2.
Especially
significant
is the
interpretation made by the
Appeal Division of the Supreme Court of Nova Scotia in R. v.
Cook (1989) 63 N. S. R. (2d) 35 to the effect of s. 18(4) when
dealing with the abduction provisions of the Criminal Code.
Ss. 282 to 286 of the Code provide:
282. Everyone who, being the parent, guardian
or person having the lawful care or charge of
a person under the age of fourteen years,
takes,
entices
away,
conceals,
detains,
receives
or
harbours
that
person,
in
contravention of the custody provisions of a
custody order in relation to that person made
by a court anywhere in Canada, with intent to
deprive a parent or guardian, or any other
person who has the lawful care or charge of
that person, of the possession of that person
APPENDIX
1.
For the purposes of the Crilllinal code,
since there is no
definition of parent, reference must be made to provincial
legislation; therefore, common-law spouses are parents even
though the child may not be considered "legitimate".
[There is no] judicial consideration of the
meaning of "parent" in either s. 250.2(1) [now
s. 283(1)] or in any of the nearby sections
where it has a longer history, e.g., s. 249
[now s. 280]. At common law its meaning prillla
facie is confined to the lawful mother and
father of the party spoken of: see Bouvier Law
Dictionary (Rawle's revision) 1897 or any
current
dictionary.
In
exceptional
circumstances,
the common law apparently
recognized the rights of a father of a child
born out of wedlock to custody after the mother
and the Family xaintenance Act now puts them
on an equal plane.
R. v. Levesque (1984) 15 C. C. C. (3d) 413 (N. S. Co. ct.) at
pp. 414-15.
2.
Especially
significant
is
the
interpretation made by the
Appeal Division of the Supreme Court of Nova Scotia in R. v.
Cook (1989) 63 N. S. R. (2d) 35 to the effect of s. 18(4) when
dealing with the abduction provisions of the crilllinal Code.
Ss. 282 to 286 of the Code provide:
282. Everyone who, being the parent, guardian
or person having the lawful care or charge of
a person under the age of fourteen years,
takes,
entices
away,
conceals,
detains,
receives
or
harbours
that
person,
in
contravention of the custody provisions of a
custody order in relation to that person made
by a court anywhere in Canada, with intent to
deprive a parent or guardian, or any other
person who has the lawful care or charge of
that person, of the possession of that person
.,. 2 -
is guilty of
(a)
an indictable offence and liable to
imprisonment for a term not exceeding ten
years; or
(b) an
offence
punishable
on
summary
conviction.
283.
(1) Everyone who, being the parent,
guardian or person having the lawful care or
charge of a person under the age of fourteen
years, takes, entices away, conceals, detains,
receives or harbours that person, in relation
to whom no custody order has been made by a
court anywhere in Canada, with intent to
deprive a parent or guardian, or any other
person who has the lawful care or charge of
that person, of the possession of that person,
is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding ten
years; or
(b)
an
offence
punishable
on
summary
conviction.
(2) No proceedings may be commenced under
subsection (1) wi thout the consent of the
Attorney General or counsel instructed by him
for that purpose.
284.
No one shall be found guilty of an
offence under sections 281 to 283 if he
establishes that the taking, enticing away,
concealing, detaining, receiving or harbouring
of any young person was done with the consent
of the parent, guardian or other person having
the lawful possession, care or charge of that
young person.
285.
No one shall be found guilty of an
offence under sections 280 to 283 if the court
is satisfied that the taking, enticing away,
concealing, detaining, receiving or harbouring
of any young person was necessary to protect
the young person from danger of imminent harm.
286. In proceedings in respect of an offence
under sections 280 to 283, it is not a defence
to any charge that a young person consented to
or suggested any conduct of the accused.
- 3 -
The important section to note is 283.
court,
when dealing with then s.
250.2
In R. v.
Cook the
of the Code
[now
s. 283], stated the issue to be:
• • • in taking the child he was simply doing
what he was legally entitled to do in regaining
possession of the child and that he had no
intention of depriving the mother of possession
as she was not at that point entitled to
possession.
After an analysis of the law before the enactment of
and 283, the court concluded at p. 42:
• SSe 250.1 [now s.
282] and 250.2 [now
s. 283] are directed at parents, guardians and
persons having lawful care or charge of a child
• • • • Under s. 250.2 a parent may (sic) [not]
abduct a child from another parent although
there is no custody order.
The opening words in SSe 250.1 and 250.2
contemplate that a parent or guardian may very
well
have
a
right
to
custody
but,
notwithstanding that right, may take a child
out of the possession of the other parent. The
intent is simply to deprive the other parent
of possession.
Some of the difficulty in
interpreting the sections stems from the words,
'having the lawful care or charge' as used in
the first part and the latter part of the
sections.
It raises once again the question
of how a person having the lawful care or
charge of a child can deprive another person
of possession of the child.
The distinction
is between the right to custody and actual
possession.
Those words, in my view, do not
apply to the words, 'parent or guardian' as
used in the sections.
The words, 'parent or
guardian' may, in themselves, imply a right to
custody.
SSe
282
- 4 -
Parliament clearly intended to prohibit the
abduction of children by parents presumably in
order to protect the children.
These
provisions will force parents to seek the
assistance of the
courts before taking
possession of a child without the consent of
the other parent.
Then,
with
direct
reference
to
s.
18(4)
of
the
Family
Maintenance Act, the court tersely found, at p. 42:
As there was no order for custody in this
case, the mother was entitled to retain
possession of the child without consulting with
the father.
To deal with how a parent could be in possession of a child,
the court considered s. 4(3) of the Code [then s. 3(4)] in the
following manner, at p. 44:
• • • the reference to s. 3 (4) [now s. 4 (3)]
of the Code on the meaning of the word,
'possession' in s. 250.2 of the Code • • . •
Section 3(4) by the language used was intended
to refer to the possession of personal property
• • • • There was no question of constructive
possession on the part of the mother in this
case as she had the child in her 'personal
possession' •
section 3 (4) (a) of the Code
provides:
(a) a person has anything in possession when
he has it in his personal possession or
knowingly • . •
That conformed to any dictionary definition of
'possession' . . • the remaining references to
s. 3(4) had no application.
-
5 -
For reference purposes, s. 4(3) provides:
For the purposes of this Act,
(a)
a person has anything in possession when
he has it in his personal possession or
knowingly
(i) has it in the actual possession or
custody of another person, or
(ii) has it in any place, whether or not
that place belongs to or is occupied
by him for the use or benefit of
himself or of another person; and
(b) where one of two or more persons, with the
knowledge and consent of the rest, has
anything in his custody or possession, it
shall be deemed to be in the custody and
possession of each and all of them.
Leave to appeal the Cook decision to the Supreme Court of
Canada was refused.
3.
For a
fuller discussion and judicial interpretation of the
terms, "custody" and "access", reference is made to Glasgow
v. Glasgow (No.2)
(1982) 51 N. S. R.
(2d) 13 (N. S. F.
c.).
While there has been some refinement and small modification
to the terminology by way of this paper,
essentially the
principles enunciated stay in tact.
4.
An
extremely
Huddart,
C.
definitions
thoughtful
C.
J.
in
of custody,
and
Anson
useful
v.
analysis
Anson
guardianship,
is
dealing
etc.
made
with
by
the
This case is
primary and essential reading for anyone studying the basic
concepts of custody/guardianship in family law.