Years ago, joint custody was held by Courts to be workable only if both separated parties were wholly cooperative with each other. Judges often held that the mere fact parties were appearing in front of the Court was an indication they could not cooperate enough to obtain a joint custody Order. Thankfully, those days of a Catch 22” scenario for parties seeking joint custody are long over as courts in British Columbia have dealt with the emerging concept of "parallel parenting."
Courts now hold that parties can be awarded joint custody against their wishes and even in cases where there are transitional disagreements over child raising decisions between separated spouses.
However, until very recently, Courts were reluctant to award joint custody to parents who bitterly despised each other and who made their feelings about the opposing parent well known to their children.
Courts in British Columbia in the case of P.Y.Y.M. v. D.M. 2003 BCSC 766 and the recent case of D.H.A. v. K.E.M. [2004] Y.J. No. 21 have dealt with the emerging concept of "parallel parenting."
Parallel parenting splits the duties of child raising so that each parent exercises the full panoply of custodial and guardianship rights independently of the other, with each being fully in charge during the time they exercise the care and control of the children. The Courts can even order one party to have exclusive say over an area of decision making for the child such as health, education or religion despite sharing joint custody of the children.
Parallel parenting focuses on the best interests of the children not on the parents’ dysfunctional relationship. The benefits of parallel parenting are:
1. A recognition that it is in the best interests of the children to have an equal involvement with both parents, which means children do not have to forfeit the love and guidance of two loving parents merely because the marriage broke down.
2. It reduces the parents’ need to discuss and thus argue over decision making for the
children thus reducing conflict that adversely affects the children.
3. It focuses on parental responsibility instead of having parents and children view a sole custodial award as leaving someone the winner and someone the loser.
In P.Y.Y.M. v. D.M., the Court heard Dr. Elterman’s opinion on parallel parenting as follows:
"In Dr. Elterman’s opinion, it may be more fruitful for the Court to eliminate or reduce contact between Mr. and Mrs. D.M. and encourage "parallel parenting" rather than attempt to force "co-operative parenting". He referred to recent research that divides post-separation parents into three groups:
* a third are high conflict;
* a third are co-operative; and
* a third, who are in the middle, may be best able to parent their children in parallel households.
Ideally, every parenting relationship should be, or eventually develop into, a co-operative relationship. However, Dr. Elterman noted that it may be unrealistic to achieve co-operation between high conflict parents. A more sensible goal may be to encourage them to parent through parallel households. That method disengages them, reduces their contact and eliminates their opportunities to constantly bicker."
In D.H.A. v. K.E.M., the Court explained its philosophy on parallel parenting:
"The [interim] care and control order was essentially based on a parallel parenting model to keep the parents separate and allow each parent to care for the children during their time. The parents were instructed to discuss any significant decisions about the children but if agreement could not be reached with the assistance of counsel, either party could apply for a court order. Specific longer periods of care and control were ordered for the summer. I also implored both parents, who obviously love their children, to give a lot of consideration to their conduct as it affects their children. I specifically advised against denying access to the children."
The Court went on to make specific orders to give effect to separate but equal powers to the separated spouses:
It is not the relationship of the parents that is at issue. Rather, it is the best interests of the children that must prevail and I find that an equal sharing of the children will be most beneficial to them. Thus, F. and Z. will have the maximum contact with both their parents in a parallel parenting regime as follows:
1. Ms. K.E.M. and Mr. D.H.A. shall have interim joint custody of the children.
2. Ms. K.E.M. will have care and control of the children for the week commencing January 26, 2004 at 9:00 a.m. and Mr. D.H.A. will have care and control in the following week commencing at 9:00 a.m. February 2, 2004. Care and control will alternate each week thereafter.
3. Communication between Ms. K.E.M. and Mr. D.H.A. will be by e-mail.
4. The children shall participate in such extracurricular activities as the parents may agree on and the costs of such activities shall be paid by Mr. D.H.A. If there is no agreement on extracurricular activities, each parent will support the children separately in those extracurricular activities pursued during the care and control of that parent.
5. Each parent shall have telephone access to the children on Tuesday and Friday night at 7:00 p.m. for thirty minutes in the week when the children are in the care and control of the other parent.
6. Neither Mr. D.H.A. nor Ms. K.E.M. shall consume alcohol or drugs during their care and control of the children.
7. The parent who has the care and control of the children shall have the obligation to advise the other parent of any significant events that take place. Telephone communication may be used in case of emergencies.
8. Each parent shall have the obligation to discuss significant decisions concerning the health (except in emergencies), education, religious instruction and general welfare of the children. If the parents cannot reach an agreement, either parent may apply to this court for an order.
9. Each parent shall have the right to obtain information concerning the children directly from third parties including teachers, counsellors, medical professionals and third-party caregivers.
10. Each parent shall have the children for 1 month during the summer and shall share the children equally during the Christmas holidays and Christmas day, subject only to such other agreements that may be reached by the parties or ordered by this court.
11. Neither parent may remove the children permanently from the Yukon Territory without a court order."
It seems British Columbia is lagging behind the rest of Canada in making parallel parenting Orders. Our review of the case law indicates far more parallel parenting orders are occurring in other provinces compared to British Columbia. If you have a high conflict child custody case, call us now to discuss your options.
