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When Is Joint Custody Applicable In A Family Law Case In Brampton, Ontario?

I recently had a family law case at the Brampton courthouse where I was representing the father in a case involving his 4 year old son.  The big picture facts were as follows: the child was living primarily with his mother but seeing the father every weekend, overnight.  My client, the father was taking his child to the Doctor most of the time for routine matters (i.e., when he was sick or for immunizations) and the child’s daycare seemed to have more positive things to say about the father than the mother.  The boy was thrilled to spend time with dad whenever access took place.  There was no custody order in place for either parent.  However, my client was pushing for joint custody.  The mother was highly opposed.  Now joint custody orders will only typically work when both parents are good communicators and have respect for one another.  When they can both come to decisions together about what’s in the best interests of the child, then joint custody will work best.  In this particular case, it did not help that my client had been charged criminally with assaulting the mother a year ago, despite those charges having been withdrawn by the Crown by way of a s. 810 peace bond.  My client, the father has no criminal record as a result.  However, needless to say both parents have some resentment towards one another.   The Judge had recently given her comments and thoughts on the case.  Judges typically do this at what’s known as a “case conference”.   Because of the past criminal charges (despite the withdrawal) and the distrust and resentment between the parents, the Judge basically said she would not grant joint custody in this case.  (As an aside or footnote, withdrawals or even full acquittals in criminal cases are not looked at in the same light in the family court – just because you won the criminal case, does not mean the event did not happen since the burden of proof in a criminal case is so high versus a much lower threshold for proof in a family law court.)   Given the underlying facts of the case, the Judge did say that it’s possible that at a hearing, the father could be awarded custody.   An issue for the Court however is that the child resides primarily with the mother.  So the scales are tipped towards the mother at this point.  Sometimes, Judges look for a tie breaker in determining difficult cases such as these.  Someone needs to have a final say over a young child, otherwise, there’s pure chaos, which is not healthy at all for the child – certainly not in his/her best interests.  In this case, the tie breaker will likely be the residency status in favour of the mother.  As is typical with most family cases the longer a case drags on without resolution, the more unpredictable it becomes.  But what we can learn from this case is that joint custody typically wont work in cases where there is a history involving criminal charges and distrust and resentment among parents.  That’s not to say it can’t work in all cases.  And my client now has to think very hard if he would like to disrupt his child’s residency status, or whether he is agreeable to a quasi joint custody order (a second best)  where he has input over the child but final say and decision making authority will rest with the mother.   If you find yourself in a similar situation or want to talk to a family law lawyer in Brampton or the Greater Toronto area about custody or joint custody then feel free to contact my office for a free consultation at 905-789-9007 or email at avi@baratzlaw.com. 

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