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By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

What happens when separated parents cannot agree on anything regarding their child? This was the dilemma that plagued 6 year old Nathan. His parents became embroiled in a 9 day trial and then a 2 day appeal over this very problem.

Ultimately, on May 21, 2002, in the case of Cox v. Down, [2002] O.J. No. 2762, Mr. Justice Templeton of the Ontario Superior Court of Justice decided that the least of all evils was to decide each and every aspect of Nathan’s life for his two parents.

Nathan’s mother was a nurse and his father was a doctor. These parents never lived together. Nathan lived with his mother since birth. When he was 5 years old, Nathan’s father was awarded custody. His mother appealed from the judgment changing custody of Nathan. The trial judge found that the mother actively interfered with the father’s access and discouraged a relationship between Nathan and his father. After a long history of litigation, it was ordered that granting custody of Nathan to his father and access visitation to his mother would be in Nathan’s best interest.

On appeal, an order was made for joint custody of Nathan using the ‘parallel parenting’ model. The appeal court considered the many Canadian cases that concluded that parallel parenting can be appropriate in cases where parents are openly hostile and uncooperative. The concept is that the parents have equal status, but exercise the rights and responsibilities associated with custody independent of one another. A parallel parenting order is much more than a mere residential schedule where the child resides with one parent on a day to day basis. The concept of parallel parenting is intended to remove the power struggle between the two parents for control over the child.

The court decided that a parallel parenting order that would micromanage Nathan’s life with his two parents was in his best interest.

In the end, not only were Nathan’s parents granted equal time with Nathan throughout the school year, summer and holidays, but the rest of Nathan’s life was to be micromanaged. Nathan’s father was granted care and control of Nathan’s birth certificate and passport. Nathan’s mother was responsible for all decisions regarding Nathan’s health. Each parent was entitled to select one after-school activity for Nathan, provided that the activity did not fall within the time Nathan spent with the other parent. The parents were ordered to use a ‘communication diary’ to exchange information regarding Nathan’s care.

In addition, the appellate judge was forced to decide the title of Nathan’s father. The court ruled that the mother was required to refer to the father as ‘Dad’ or ‘Daddy’ in the presence of, and within hearing distance, of Nathan.

This entry was posted on Tuesday, October 25th, 2005 at 9:50 pm and is filed under Family Law. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.