When Is Parallel Custody An Option Instead of Joint Custody?

Written on behalf of Arbesman Hamilton LLP

When it comes to matters of child custody and access, most people might assume that only two options are available to the courts – sole or joint custody. However, the courts have the discretion to find a solution that somewhat blends the approach with a solution known as “parallel custody.” A recent decision from the Ontario Superior Court of Justice serves as a great primer on what the differences between parallel custody and joint custody are.

A marriage comes to a quick end

The parents were married in 2014. They had a child and separated that same year. The parents found themselves fighting a great deal after the birth of their child, resulting in the mother moving out of the matrimonial home with the child.

Following the separation the mother sought sole custody of the child, while the father sought joint custody with a parallel decision-making structure.

What is parallel custody?

Joint custody and parallel custody might sound similar, but there is an important difference between the two. While joint custody requires both parents to be involved in all decisions relating to the children, parallel custody allows for parents to each have their own areas of decision-making exclusive of the other parent.  So what is the reason parallel custody exists? The courts have recognized that in some cases it is appropriate for the child’s parents to share access to the child, but that the relationship between the parents might be so poor that joint decision making would not be possible. Parallel custody allows for the parents to share access, but not decision-making responsibility.

The relationship between the parents

In this particular case, the court ran through the events leading up to and following the parties’ separation. They blamed each other for not being good partners. The mother complained about the level of involvement the father’s family had in the house, and that he was working too much as a DJ. She also complained that he did not treat her in a loving manner, adding he bullied and disrespected her.  

The husband, meanwhile, testified he felt under-appreciated by Vanessa and did not think she was doing enough around the house when she was home with the child. He denied being aggressive towards her, and accused her of being the same to him.

Is joint custody appropriate?

The court noted that traditionally, joint custody has been treated as an exceptional remedy, suitable in circumstances where the parties demonstrated cooperation and consent. Since it requires the parents to make joint decisions regarding the child, the court is to consider whether the parents are capable of communicating and cooperating in a way that will allow decisions to be made jointly. The court noted that it’s not enough for the court to hope that communication between the parents improves, stating that it should already be in place.

In this case, the court thought the relationship between the parents was not cooperative enough to warrant an order of joint custody.

Enter parallel custody

Despite the unlikely possibility that the parents could engage in joint custody, the court still found the parents to be loving parents of the child, with each parent able to properly put the interests of the child forward.

The court ruled,

“After having considered all of the evidence and factors outlined above, I find that a joint-custody order with parallel decision-making is in (the child’s) best interests. This order requires the parties consult with respect to all decisions involving (the child), but provides that if there is not an agreement (the mother) will make final decision with respect to educational matters and (the father) will make the final decision with respect to medical decisions. With respect to extra-curricular activities, the parties will continue to arrange for activities when they have access or with the agreement of the party, but they must advise the other party of the activity and its schedule. The terms of the joint custody with parallel decision-making are set out in greater detail in the order part of my reasons.”

Access of the child was granted to the father every other weekend from Friday afternoon to Monday morning as well as Tuesday evenings.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. Arbesman Hamilton LLP and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.