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It’s unwise to make presumptions when it comes to deciding what’s best for a child in a custody case, says Toronto family lawyer A. Julia P. Tremain.
Tremain, a partner with Waddell Phillips Professional Corporation, says there are no absolutes when it comes to issues such as shared parenting.
“It’s not one-size-fits-all because every family is different,” she says. “Family law is fact-driven, so the problem with any presumption about shared parenting is that it doesn’t work for all families. So much depends on who’s been doing the primary care. Sometimes one parent is mostly responsible for the doctor and the dentist. Sometimes both parents share that task.
“A judge needs to know who did what before making a decision. Having any presumptions in place doesn’t necessarily reflect what is actually happening on the ground.”
While noting the benefits of shared custody, Tremain says it’s not a simple matter of dividing the children’s time equally between parents.
“There are many families who can absolutely manage shared equal parenting, but there are also parents who can’t,” she says. “It can depend on their work situation, how far away they live from each other or where the children go to school.”
The ‘best-interest test’
Tremain says it is essential that each case is assessed using “the best-interest test,” which examines a variety of issues to ensure the well-being of the child.
“The factors in that test are found in the Divorce Act and the Family Law Act, and there’s a whole list of components that the court has to look at when they decide custody and access,” Tremain says.
The family dynamic must be considered, and before anything is decided, each parent needs the opportunity to voice their concerns, she says.
Tremain says while shared parenting may seem ideal, the logistics can be difficult to overcome. For example, if the parents don’t live in the same neighbourhood, there is the question of where the child will go to school.
“The child is not going to go to school somewhere between the parents,” she says, adding the child may spend a great deal of time being shuttled back and forth.
“Is that best for the child? These are factors that go into the shared parenting,” Tremain says. ”You have to see whether it can work because you may have two people who are both great parents but essentially one of them is going to have to have the child in the primary residence with them.”
Can’t always share decision-making
She says an understanding of how the family worked in the past is also important when it comes to the issue of shared decision-making.
“If there’s a presumption that decision-making is going to be shared, then you’re presuming both parents can communicate well with each other, and that’s not always the case,” Tremain says. “If you have cases where there’s domestic violence, addiction, or problems like that, then you’re going have issues around decision-making.”
She says for parents to share equally in making decisions for their children the court must be convinced that “They can be civil and can respond to each other quickly if there’s an issue that has to be dealt with immediately.”
Sorting out what will work in each home is vital before going to court, says Tremain, who encourages her clients to choose mediation over confrontation.
“Negotiation is far better because the parents have more control over the actual outcome. Otherwise, a judge will impose what they think is best,” she says, adding compromise and managing expectations are essential in mediation.
“Both people have to be prepared to give up something in order to get somewhere. If one of them gets everything they wanted and the other one gets nothing, then why did they go to mediation?” Tremain says. “If both people walk out of mediation sort of unhappy, it is usually a good mediation.”
