Several appellate courts have rejected granting parents joint custody of their children when the parents are not able to communicate.  In Ontario, the Court of Appeal held that “joint custody or parallel parenting should only be ordered where parents can communicate effectively” , while the Alberta Court of Appeal held that joint custody and shared parenting arrangements ought not be ordered where parents are in substantial conflict.

In another case, the Ontario Court of Appeal declined to interfere with an award of joint custody in a high conflict case, where the trial judge had ordered joint custody with parallel parenting.   In that case, an assessor observed that the parties had in fact managed joint custody reasonably well over an 18-month period, although the parties disagreed.  This trend seems to suggest that in awards of joint custody despite high conflict, where assessors recommend it, courts frequently follow suit.  If the parties can manage joint custody even though they might not like it, it will probably result in more joint custody.

Courts at the trial level are tending to make similar rulings.  In the dramatic example of Mancini v. Mancini, the parents were “warring”.  The court ordered joint custody anyway, and set out seventeen paragraphs of terms to help them manage the arrangement.  Other courts at the trial level are ruling the other way as they try to fashion results in the children’s best interests.

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1-source: Recent Developments in Family Law by Philip Epstein, Q.C. and Lene Madsen: www.lexpert.ca
2-Roy v. Roy, 2006 CarswellOnt 2898, (Ont. C.A.).
3-Chechotko v. Chechotko, 27 R.F.L. (6th) 47 (Alta. C.A.).
4-Ursic v. Ursic, 2006 CarswellOnt 3335, (Ont. C.A.).