Trepanier v. Cadieux-Trepanier – Joint Custody in High Conflict Situations

This recent decision of the Ontario Superior Court of Justice is a groundbreaking one in the arena of joint custody orders for high conflict families. In this case, a same-sex couple were the parents of twins who were conceived via artificial insemination using an anonymous donor. At the date of separation, the children were 5 years old. The circumstances of the parties’ separation gave rise to a great deal of conflict between them, begging the question of whether or not the children’s best interests would be served by a joint custody regime Previously, Courts who were asked to make custody and access orders in high conflict cases looked to the Ontario Court of Appeal’s decision in Kaplanis v. Kaplanis, wherein the Court stated that the mere fact that a Judge wishes for parents to effectively provide their children with a meaningful joint custody regime will not create one. That is, joint custody is inappropriate in a case where the parties cannot communicate well enough with one another to make appropriate decisions for the children. There are cases to the contrary, however, in which the Court condoned a joint custody regime in a high conflict separation where an order for parallel parenting accompanied this regime. Parallel parenting provides each parent with final decision making power regarding particular aspects of the children’s lives, specifically to do with health and medical care, education, and religion.

In this case, the Court adopted the latter approach and added an important facet for similar cases in the future. The Court did award the parties’ with joint custody as well as a parallel parenting regime. However, the Court stressed that such orders must be exceedingly specific in high conflict situations so that neither party can escape via loopholes. This means that any decision in such a case, whether made by a Judge or between the parties themselves, must take the possibility for conflict into account. The Judge in the case at bar created an access regime whereby each parent has the children on a week about basis in order to reduce the number of exchanges and, thereby eliminate potential for conflict. The Court allowed each party to travel with the children but mandated a long notice period and stated that each party “shall” sign the appropriate consent forms. The Court also went to great lengths to provide for every possible school vacation, holiday, and other special occasion, leaving very little to the parties to decide among themselves. Lastly, the Court gave Ms. Trepanier decision-making authority regarding health, medical and dental issues, and extracurricular activities for the children. Ms. Cadieux, in turn, was granted decision-making power regarding all other major decisions for the children.

Perhaps the most uncommon aspect of this case is that the Judge seized herself of the matter, or chose to remain involved in same, on an indefinite basis. Typically, if a Judge remains seized, they do so for a pre-determined period of time. However, the Court’s decision in the present case seems appropriate and helpful in the circumstances.

This Post Has 2 Comments
  1. High conflict custody/access situations require that there be orders or agreements with the highest degree of certainty to reduce, if not eliminate, the opportunity for conflict. Presumably if each party knows exactly when he/she has the children and which decisions he/she can make, the need to consult, discuss or argue can be avoided. Of course conflicts will still arise from time to time but the hope is that the specificity of the provisions of the order/agreement will provide a framework or roadmap for the parties to follow. Additionally it may well be necessary at times to provide for the involvement of a parenting coordinator, retained jointly be the parties, to assist them in resolving disputes that may still arise despite the specific framework of the agreement/order. The parties can even agree that the parenting coordinator be authorized to make decisions if an agreement on issues in dispute can not be reached.

    I think that we will in the future see an increase in parallel parenting regimes. It certainly gives those judges inclined to impose joint custody regimes on high conflict families ammunition for doing so. Whether such parallel parenting regimes will in fact prove to be in the children’s best interests will remain to be seen.

    The judge wishing to be seized of the matter captures the spirit and intent of the case management system. That system certainly contemplated one judge dealing with a matter throughout to provide continuity. This practice, in my view, should be encouraged.

  2. I agree with this decision and think that it is a very interesting and well thought out one. This case is a perfect example of a Judge really focusing on what will be in the best interests of the children. Knowing that children’s interest would be best served by being in the joint custody of both of their parents, the Judge crafted a parenting regime that suits both the high level of conflict and the children’s needs. This is a refreshing approach, and one that should be taken more often, as it is easy for the children’s interests to be subsumed by the conflict between the parents.
    It is also interesting that the Judge seized herself of the matter indefinitely. This method, while very practical and considerate, may not be possible on the busier jurisdictions in the province. If this option is not available to a Judge, perhaps they could appoint a parenting co-ordinator to assist the parties in working through decisions for the children where they cannot agree amongst themselves. In a high conflict case such as this, it would be prudent to imbue the parenting co-ordinator with the ability to act as an arbitrator where the parties have great difficulty reaching consensus.

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