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Some Joint
Custody Case Summaries
These are by no means the most recent joint custody cases. Rather, they
represent some case summaries which I had on file. I will try to post more recent case summaries.
1. Hines v. Hines (1992), 40 R.F.L. (3d) 274 (N.S.S.C.T.D.)(Williams). Parents agreeing child should live
with father. Parties able to co-operate on most issues. Father applying for sole custody. Joint custody ordered.
Father given day-to-day responsibility and denied mobility rights without consent. At a minimum co-operation is
an essential element of joint custody. In absence of evidence to support it (ie. either the agreement of the parties
or an examination of the history of the parties) then joint custody should not be ordered. If parents cannot set a
side their differences then there is no point in even making the order. Custody is a bundle of rights and not
absolute control.
2. Surka v. Surka (1992), 40 R.F.L. (3d) 208 (Man. Q.B.) (Kennedy). Child living with mother. Husband
applied for joint custody. Parties could cooperate in order to meet the child's needs. Joint custody was awarded
but child to remain with mother. Access parent now has rights and custodial parent no longer has the right to
make all child-related decisions unilaterally. One parent must have the responsibility to make decisions when
parties cannot agree, this is the custodial parent.
3. Eliopoulos v. De Quilla, unreported, O.C.J. (Prov. Div.), Woulder J., 8 July 1992, digested at T.L.W.
1218-030. Both parents sought sole custody of daughter. Joint custody ordered even though neither parent
asked for it. Both parents caring and could communicate for their daughter.
4. Courtney v. Courtney (1992), 42 R.F.L. (3d) 450 (Ont. Ct, Gen. Div.) (Rutherford). Mother has custody
and father has access. Children's activities interfering with father's time. Joint custody denied. Must adapt to
accommodate children's needs. Need to keep them in a stable environment.
5. Skelton v. Skelton (1992), 44 R.F.L.(3d) 87 (Man. C.A.) ( Philp, Twaddle and Helper). Parties agreed on
joint custody. Judge decided respective shares of child's expenses on the basis of their gross income.
6. Bechamp v. Sams, unreported, Ont. Ct, (Gen. Div.), No. 40721/89, Conant J., 21 December, 1992,
digested at The Law Times. Had joint custody but sole custody given to mother because in children's best
interest because hostilities developed between parents.
7. Erler v. Erler, unreported, Ont. Ct, (Prov. Div.), Pedlar Prov. Div. J., 11 January, 1993, digested at The
Law Times. Parents did not communicate well. History of spousal violence. Joint custody ordered because kids
close to father and in their best interest to remain in maternal home.
8. Fry v. Silkalns (1993), 47 R.F.L. 169 (B.C.S.C.) (Hood). Test for joint custody has been relaxed. The
parent-child relationship is the most important and not the husband wife relationship. Judge felt both parties
would make good parents so awarded joint custody. 'Try it and if it doesn't work they can always change it'.
Parents must be able to communicate and co-operate with respect to the child.
9. DeLarge v. Delarge, unreported, Ont. Ct, (Prov. Div.), No. 541/90 Dunn Prov. Div. J., 29 April, 1993,
digested at The Law Times. Joint custody changed to father having sole custody because could provide a much
more stable environment and joint custody was not appropriate in first place.
10. Beck v. Beck (1993), 48 R.F.L. (3d) 303 (P.E.I.S.C.)(DesRoches, Mitchell and Carruthers). Trial judge
awarded father permanent custody and mother access. Mother's appeal based on argument that judge placed
too much emphasis on children's wishes. Appeal denied. For joint custody parents must be able to work
together.
11.Brushett v. Brushett (1993), 109 Nfld & P.E.I.R. 129, 42 A.C.W.S. 86 (Nfld. S.C.T.D.)(Green). Judge
Green found not binding Newfoundland Court of Appeal case. He refers only to other trial division decisions.
In considering the best interest of the children one can order joint custody but there should be no presumption
of joint custody. One must look at each case solely from the best interest of the children. What is important is
the continuing involvement each parent has in the child's life and not how it is described in the legal sense. One
parent is responsible for day-to-day decisions while both have the responsibility for important long term
decisions. Joint custody does not necessarily mean split between two houses. Joint custody simply means the
sharing of responsibility. The trend in Newfoundland is towards a more liberalized use of joint custody. The
courts should try to decide who has the daily responsibility without labelling it as custody. The courts must then
weigh the benefits of continuing participation of both parents in decision making verses the negative effects.
Once these two have been decided the court must decide how to linguistically phrase it without being misleading
or counter productive.
12. Przygocki v. Przygocki, unreported, Ont. Ct, [Gen. Div.], No. NC184035/91Q, Greer J., 27 July, 1993.
digested at The Law Times, September 27, 1993, Both parties seeking interim custody. Problems
communicating with each other not enough to stop joint custody. Found to be in best interest of children.
13.Keyuk v. Keyuk, unreported, Sask. Q.B., Halvorson J., 30 September 1993, digested at T.L.W.
1327-004. Joint custody order varied to have child reside instead with father. Mother could not handle boy's
behavioural problem. Showed large improvement when lived with father. In the event of disagreement the
father's decision would prevail. Mother was a good parent and therefore rights enforced still and sole custody
not granted.
14. Rix v. Rix (1993), 50 R.F.L. (3d) 22 (P.E.I.S.C. T.D.) (DesRoches). Father applying for interim joint
custody and mother for interim custody. Children presently living with father in nice country home. Judge doesn't
want to grant custody to either because afraid trial judge will just follow his decision. Orders to keep status quo
for now until trial. If both parents have merit then joint custody should be awarded.
15. Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70 (Ont. Ct, Gen. Div.) (Salhany). Mother was interfering
with father's access in joint custody situation so primary residence was given to father. Joint custody should not
be reserved for cases where the parties cooperate on all matters otherwise there would exist an incentive for
parents not to cooperate. Joint custody is no longer the exception. The legal rights of both parents in joint
custody do not have to exist at the same time. If the child is required to be under his/her control at that time then
that person has the legal rights. There need not exist communication between parents because important issues
like school and religion will be decided by the parent who has the specified care and control at that time that the
child is attending school or church.
16. Young v. Young (1993), 49 R.F.L. (3d) 117 (S.C.C.) (LaForest, L'Heureux-Dube, Sopinka, Gonthier,
Cory, McLachlin and Iacobucci). Mother awarded custody of children and appealing father's access to stop
him from sharing his religion with children (B.C.C.A. decision). Father part of Jehovah's Witness faith. Appeal
dismissed.
Majority (McLachlin, Sopinka, Cory and Iacobucci) - Defines "best interest of child" test (starting p. 149) -
Test left broad but not completely left to judges discretion. Parliament has expressed its opinion that contact
with each parent is valuable but this can be restricted if not in the best interest of the child. In the absence of
harm access should not be restricted. Parental interests and rights play no role. Custodial parent does not have
right to limit access. Only time they can limit if in best interest of child.
Dissent (L'Heureux-Dube, La Forest and Gonthier) - Child has a right to a parent who will look out for his or
her best interest. The custodial parent is solely and primarily responsible for all aspects of the child's daily life
and his or her long-term well-being, and making major decisions with respect to education and religion free
from interference from the State or access parent. The access parents role is only that of an interested observer.
He or she has a right to know but not a right to be consulted.
L'Heureux-Dube (at p. 185) - Canadian courts have not generally accepted the view that joint custody is to be
preferred. Joint custody rarely ends up with true shared custody. The primary care giver usually maintains the
role.
17. Droit de la Famille-1150 (1993), 49 R.F.L. (3d) 317 (S.C.C.). Similar situation to Young v. Young in
that mother trying to restrict's fathers access to stop him discussing religion with children. Father is part of
Jehovah's Witness.
Majority (L'Heureux-Dube, Gonthier and La Forest) - Harm to the child is only one of the many components to
decide what is in the best interest of the child. The right of custody also includes the right to make decisions
about the child's religion. The access parent may exercise those parental rights that do not oppose to the
custodial parent. Access in this case should be denied.
Concurring (Cory and Iacobucci) - Religious differences will not necessarily harm the child. In the case at bar
the religious practices of the father distressed the child and therefore access should be denied.
Minority (McLachlin and Sopinka) - If there is no harm coming to the child because of the religious teachings
then access should be allowed. There is no evidence here of harm coming to the child.
18.Roback v. Roback (1993), 7 O.F.L.R. 043 (Ont. Ct, Gen. Div.) (Jarvis). As a general rule joint custody
should be agreed upon by the parties and not imposed by the courts. The parents must be able to communicate.
The Robacks cannot agree or communicate on anything and therefore joint custody was not awarded.
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