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Smooth or Crunchy?


Let’s ponder this joint custody thing a while more. I find it one of those intellectual debates where I can argue with myself non stop (but then again I do the same thing over smooth or crunchy…………decisions). One the one hand, it’s a really nice idea. Mommy and Daddy want to rip each other’s throats out, but will play nice nice for the kids. Hey, if it works (and I have seen cases where it really and truly works) it beats the hostility out of a court order that grants sole custody to one parent and then goes on through 3 pages of legal minutiae defining hours of pick up, times for drop off, when Jimmy can pee, if grandma can give him a Christmas present, and what happens if mom is 3 minutes late showing up at the supervised access centre. If I were an idealist, I would tell you that of course adults can put aside their differences and put the “best interests of the child” first and foremost. Yeah. And I’d also tell you that the Easter Bunny is going to pay your taxes come April. The reason that a whole pile of bureaucrats holed up for months writing the Family Law Rules (designed to make people stop fighting like cats tied together by the tails every week in motions court) is that in reality, it just ain’t so. The truth of the matter is that separated spouses, by definition, have a problem getting on well with one another. Hmmm. Maybe that’s why they separated? Quick, huh?

Now, like any custody arrangement, you can get joint custody one of two ways ­ either you can agree on it and write it up in a separation agreement, or you can disagree on it and let a judge tell you what it’s gonna be. That’s it ­ real simple. Practically speaking however, while it happens occasionally, most judges won’t force joint custody on two people who refer to each other as “that #$@%^#&” and haven’t spoken (excluding expletives) for 17 months. It makes sense if you think about it ­ why take two people who hate each other to the point of throwing stuff and make a court order that forces them to chit chat every day about the kiddies. Now, that’s not to say that a court does not have the power to hoist joint custody upon two uncooperative parents ­ it’s just that the technical power to do it is seldom followed in practice.

There are no starting presumptions when a court has to determine a child’s best interests. The only consideration is the ethereal “best interests of the child”. Each case has to be examined on its own merits in order for a judge to conclude which parent, or parents, is/are best suited to nurture the brood. Consider this little dilemma when a custody battle really gets a’blazin’ ­ you get served with an application claiming sole custody. You don’t like it (almost no one does). You counter claim for joint custody (to show how reasonable you are) and in the alternative, you claim sole custody (because your ex, in opposing your joint custody request, is clearly demonstrating an inbred, genetic inability to put the best interests of the child in front of his/her blistering hostility towards you). Clever. After all, how can your ex argue against your desire to simply be fully involved in the lives of your delightful children? In opposing your reasonable middleground position, you argue that your ex is once again showing that neurotic, overprotective, retributive side which drove you out of the marriage and into the arms of Candy the table dancer. So, now you’re the judge. Is this request for joint custody pure of heart and best for the children, or is it just a tactic to scare the crap out of the primary parent in order to get them to back off and leave the pension undivided? Is it motivated by a true desire to be June Cleaver or is it a sly attempt to pay less child support (as parents who have the children more than 40% of the time may get a break on Guidelines Child Support)? Now you see how the game is played. Joint custody may be the best thing since the multi function remote control, or it might be just a tactic.

Can a court truly divide up a child as King Solomon proposed? Can we divide a child like we divide bank accounts and furniture? Can parents at war truly be expected to overcome their feral desire to destroy the other and overlook their mutual animosity each time the subject of their children is at hand? Is the “best interests of the child” so factually driven that it is more an exercise in “know how your judge thinks”? Do you want smooth or crunchy?

If you would like to contact me about your case, please contact our Toronto office at (416) 642-4928 or our Timmins office at (705) 267-7600 to arrange a free consultation.