CUSTODY AND ACCESS – SOLE OR JOINT CUSTODY – DE FACTO CUSTODIAL PARENT OBSTRUCTING COMMUNICATION

By April 3, 2017 Blog No Comments

A parent cannot disengage from attempting any meaningful effort to communicate with the other parent and then expect to gain sole custody based on an alleged inability to communicate (at para. 31). Here, the parents separated when the child was three. For the first two years of the child’s life, they had shared parenting responsibilities. The mother contended that, several months before separation, the father assaulted her physically and she was afraid of him. The father denied the assault. They separated when the mother left the home with the child without notice and refused to speak to the father. Since then, she had avoided all contact with him. She set the terms of access, which was facilitated through third parties. When the father began a logbook to communicate about the child, the mother saw this as an attempt to control her.

The court found that both parents had the ability to meet the needs of the child, who was happy and well-adjusted. The father’s entries in the logbook were child focused and appropriate. The court could not determine whether the alleged assault had occurred or not. However, it concluded that the mother’s decision not to engage in meaningful communication was not the result of any past domestic violence, but that she chose this course to strengthen her position for sole custody. The court did not believe there was a power imbalance between the parties. The mother had to find a way to communicate with the father effectively in the child’s best interests. The fact that the child had remained with the mother since separation as a result of the mother’s actions did not strengthen her claim for sole custody and primary residence. The court granted joint custody with week-about residence of the child: Bjarneson v. Karambetsos, 2016 ONCJ 684 (Cleghorn J.).

LAO LAW – The Bottom Line in Family Law