Very often people confuse the meaning of the word “Custody”. The current legislation does not have this word in it anymore. The new legislative amendments that have come into force changed that language. However, even in the past people often mistakenly meant parenting time when they were saying “custody”. In family law, custody means decision-making authority. The parties make major decisions regarding religion, education, health-care, activities. Now lawyers use a phrase “decision-making authority” when they refer to it.
One of the leading cases on decision-making is Kaplanis v Kaplanis where the Court has stated the following (Kaplanis v Kaplanis, 2005 ONCA 1625):
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.
What Does Decision in Kaplanis Mean?
This means that one parent cannot artificially create a conflict and then claim inability to communicate. This action clearly creates a litigation advantage, which courts do not approve. The courts will view this behaviour as unreasonable and will not tolerate it. On the other hand, it is not enough to simply allege that the parties can communicate for the purposes of requesting joint decision-making authority (or as professionals referred to it before “custody”). A party who wants to receive a joint decision-making authority has to provide some evidence. That party must prove an ability to communicate/co-parent with another party. For example, a good idea would be to keep communication log and ensure communications are respectful. Examples of decisions made by the parties together in the past would also be helpful.
All in all, at Progressive Legal Solutions (PLS) we can help you assess your case properly and advise you what options you have with respect to obtaining a court order regarding decision-making authority for your child (or as it was called in the past “custody”).
Decision-making authority (“custody”) is an important issue in many family law cases or during a divorce or separation. PLS is the right firm to help you navigate during these trying times.
