CASE STUDY

ON SHARED PARENTING IN CANADA

(J.C.E. V C.D.G)

NAME OF THE AUTHOR: URMI CHETAN SHETH

Contents

1. Introduction
• Shared parenting
2. Title and Citation
3. Facts of the case
4. Issues
5. Reasoning
• The judge has given following conclusion of the submissions made by parties
• Judge’s opinion on the issues raise
6. Decision
7. Conclusion
8. Bibliography and references
 INTRODUCTION

Some countries like Australia, England, Scotland, etc have stopped using terms such
as custody and access. In United States and some of the Commonwealth countries,
generally, access is called visitation or contact.

The report of the Special Joint Committee on Child Custody and Access in Canada
recommended that the terms custody and access should no longer be used in the
Divorce Act. Instead suggestion was made by the Committee to incorporate the
meaning of both the terms into the new term ‘shared parenting’.
The Federal Government had responded to the same by stating that the challenge,
here, would be to identify a term that would avoid problems associated with the
terms custody and access and also the likely diverse connotations and
understandings of the word ‘shared’. The word will have to be consistent with the
best interests of child and carefully defined for public and courts’ understanding for
understanding and usage.

SHARED CUSTODY
There are different terms used in the research literature to describe shared custody
such as shared parenting, dual parenting, joint physical custody, time-sharing, co-
parenting and dual residential placement or dual residence.
In Canada, shared custody has been defined as per the 1997 Federal Child Support
Guidelines under the Divorce Act, which states shared custody as an arrangement in
which the children spend at least 40 percent of the time living with each of the
parent.
Joint physical custody is the most common term used for shared custody in United
States. In earlier works, in many studies, researchers have not clearly distinguished
between joint legal and joint physical custody. Joint legal custody is known as an
arrangement wherein both the parents are equally involved in taking important
decisions in their children’s lives without implications for the residential placement of
the child1.

1
https://www.justice.gc.ca/eng/rp-pr/fl-lf/parent/2004_3/term.html
If anything is not specified otherwise, the terms shared custody and joint legal
custody in the reports mean such arrangements where parents share physical
custody of the children and children basically, have two residences to reside at.
In most of the research reports, there is no specification about the amount of time
spent by the children in the two residences. Some cases on shared parenting or co-
parenting cannot be assumed to describe arrangements that closely resemble
shared custody. These terms are used much more roughly than is shared custody in
the Federal Child Support Guidelines. The fact is that what is called shared custody,
shared parenting or co-parenting in the literature is often what in Canada would be
called sole custody with frequent access.
Advocates of the shared custody argue that it lessens the feeling of losing one of the
parents due to divorce faced by children and is also fair to both the parents. Shared
custody requires high degree of cooperation among parents, so some courts are
reluctant in passing such order without proper assurance. For cases where there is
evidence of family violence present, there are statutory provisions that limit visitation
and prohibit shared custody.
Sole maternal custody is the norm in Canada, wherein, the children live with one
parent and the other parent may or may not have rights of access and rights of
decision making2.
Shared parenting3 gives both the parents equal opportunity to cultivate their
relationships with their kids , which effects child’s emotional health positively.
Additionally, it creates an opportunity for parents to work together for the sake of
their children.
Any decision taken regarding children’s custody is based on best interests of
children and not on the rights of the parents to have access to their children. The
behaviour of parent when deemed unfit4 towards children, such parent will be
distanced from children and may or may not be provided access to children at all.
Many a times, the visiting parent is supervised when he is spending time with the
child to make sure his behaviour is nothing of sort that will cause harm to children in
any possible way.

2
https://www.justice.gc.ca/eng/rp-pr/fl-lf/parent/2004_3/term.html
3
https://www.ourfamilywizard.com/blog/benefits-shared-parenting
4
https://minellalawgroup.com/blog/10-factors-used-to-determine-if-a-parent-is-unfit-for-custody/
 TITLE AND CITATION
SUPREME COURT OF YUKON
Between:
J.C.E - Plaintiff
And
C.D.G - Defendant
(When the first interim order was passed at that time J.C.E was the applicant but in
the second order C.D.G is the one who has filed the application)

Before - Madam Justice S.M. Duncan

Appearances:

Allyssa Tone - Counsel for the plaintiff

C.D.G - Appearing on his own behalf

Citation: J.C.E. v. C.D.G., 2020 YKSC 11

Date: 2020/03/09
 FACTS OF THE CASE
J.C.E. and C.D.G. are divorced and have two children out of the wedlock.

M.D.E. was born on July 4, 2016 and K.E. on January, 28 2019.

In November 8, 2019, the judge had passed interim custody order according to
which the custody of the children was given to the plaintiff mother, J.C.E. along with
the supervised access to C.D.G. at times as agreed by parties. C.D.G. was also
given access to the family home garage to retrieve his belongings.

C.D.G. has now requested for a new order to be passed while reasoning that there
has been change in circumstances so it would be feasible to pass the new order as
requested.

The new order as requested by C.D.G. states that:

a. There should be shared custody and decision making on the matters of

health, education and spirituality of both the children.
b. Both the parents should be given equal time to spend with children which
should include overnight unsupervised access on weekends and once during
the week.
c. C.D.G should be given access to family home once a week every Wednesday
in the absence of plaintiff.
d. The written approval must be obtained by the plaintiff regarding any relocation
of the children outside of Whitehorse5.

5
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
 ISSUES

1. The primary issue raised in this application is whether the test for change in
circumstances has been met?
Also it is important to consider the issue about what is in the best interests of the
children?
2. Have there been material changes that have altered the child's needs or the ability of
the parent to meet those needs in a fundamental way?
(Gordon v. Goertz, [1996] 2 S.C.R. 276)
3. The other issue to be addressed by the Court is to consider on a variation
proceeding as to whether the previous order might have been different had the
circumstances now existing prevailed earlier?
The factors such as change and the passage of time alone are not enough to pass
the test of change in circumstances7.

6
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1380/index.do
7
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
 REASONING

The judge has given following conclusion of the submissions made by parties

The applicant has filed sufficient proof to show on a balance of probabilities:

a. There has been either a change in the condition, means, needs or other
circumstances related to child or the ability of the parties to meet those needs.
b. The change which has taken place materially affects the child
c. The change of such nature could not have been foreseen or contemplated by the
judge while making the initial order.

Factors in considering material change include:

• The material change occurred must be viewed flexibly in order to count on all the
factual developments which have taken place since the last order was made.
• The nature of change must be significant and the effect must be long-lasting.

In much of the C.D.G’s submissions, he has blamed J.C.E. for abusive behaviour
towards him and the children and also accused her of bolstering his own character.
Though these submissions were not pertinent to the application of change in
circumstances but the judge did take these facts into consideration for
appropriateness of the order requested8.
Changes which have taken place according to C.D.G.:
a. Improvement in communication between them
b. Letter issued from Family and Children’s Services in Yukon which closed the
child protection file that had been opened during the lat hearing in September.
c. Correspondence from Family and Children’s Services in British Columbia
giving allowance to have telephone calls and video calls with foster child, M.C.
d. He has started attending counselling sessions with J.G. for the effect of
trauma as well for communication; he has also completed three courses from
Family Law Information Centre available for separating couple with children.
e. He attributes the regression of M.D.E. to his reduced presence in M.D.E.’s
life.

8
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
 f. Nothing sort of negative has happened during his supervised access with the
children which supports the fact that supervision in unnecessary.

J.C.E has entirely opposed C.D.G’s application.

According to her there has been no material change although the texts have been
more respectful than before but the submissions filed by C.D.G are incredibly
discouraging. Blaming her for the conflict to minimize his own role in the conflict and
such behaviour suggests her that very little has changed. She is glad that C.D.G.
has completed the courses that he has and attending counselling sessions for
trauma, positive results are yet to be seen from the initiatives that demonstrate
insight into his contributions to the breakdown of their relationship and the effect on
the children.
J.C.E. states that the letter from Family and Children’s Services is short on
information although C.D.G has now access to M.D. via video call and telephone, he
has not been granted in-person access9.
The reasons foe M.D.E’s tantrums and incidents of regression cannot be attributed
to C.D.G’s absence from his life since children of young age are expected to behave
in such way because of separation as observed by Child Development Centre’s
observation. Finally, J.C.E. notes her disappointment and frustration when during the
counselling session she was felt blamed and demeaned. Now she has no further
interest in attending sessions with him after this incident.
J.C.E. is worried that if the access without supervision should not be granted due to
the incidents from before showing poor judgement and risk-taking behaviour and his
refusal to take the responsibility for the same. There are other incidents too of such
negligence towards children by C.D.G in the past.
The other concerns expressed by J.C.E are that some supervisors did not take the
role seriously and interrogating M.D.E.
J.C.E. requires more details about what kind of sessions he has been attending and
insights into his behaviour and also the blame game needs to be reduced.
J.C.E has admitted that C.D.G is capable of being a good father and has genuine
interest in their well being.

9
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
Judge’s opinion on the issues raise
The threshold issue is of material change in circumstances. If there has been a
change than she will address the arrangement that is in the best interests of the
children.
Initially interim order was passed by her in the need of forbidding contact between
M.C And C.D.G but now the access for telephone call and video call is already been
granted and report from child psychologist has been awaited to know whether full
access can be granted. The matter would have been decided differently by her at
that time if she had known of the limited access permissible to C.D.G.
After coming to know of the letter and its contents, she had asked C.D.G that if he
wished he could apply for reopening of evidence but he did not do so and the matter
came up very recently.
Although C.D.G has started attending sessions, it would be helpful if he would
provide details about the same and effects it will have on children.
There has been no negative evidence by the supervisors by C.D.G during his visits.
Concluding from all the above facts it can be observed that there has been a
material change in the circumstances10.

Now, the best interests of the children have to be determined. It depends on analysis
of what kind of custody and time sharing arrangement is in children’s best interests.
The matter will be considered afresh without taking existing order into consideration.
All the evidence will have to be taken into consideration for deciding the same. Let’s
look into options:
a. Joint Custody – for joint custody to work effectively, the parents must be able to
communicate civilly and effectively with each other, at least about the children
and their benefit. There should also be trust between the parents for
communication to happen smoothly. Both the elements of which does not exist
in this case. Despite the change in texting way, which is appreciable change,
the conflict between the two and blame game is still going on. So this option is
not feasible in children’s best interests.

10
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
 b. Equal parenting time – for the aforementioned reasons this option also remains
out of reach as there is no effective communication and trust between them.
Therefore, it is not in the best interests of the children.
c. Supervised or unsupervised access – the principles of access and supervision
are summarised well in the case of Miller v. McMaster, 2005 NSSC 259. It can
be concluded that the access is the right of the child and not the parent. Access
should not be treated as reward for parenting; it should look for benefits of the
child.
Supervised access cannot be a long term solution to access problems arising
due to high conflict11.
Supervised access is viable in specific situations where the child:
a. Requires protection from physical, sexual or emotional abuse
b. Introduced in the life of a parent after a long time
Also where there are clinical issues involving the access parent.
The Judge acknowledges that though none of the above mentioned situations are
applicable here yet the list is a non – exhaustive one.
There have been incidents by C.D.G towards children which are very concerning
such as holding K.E by neck. Back than in October, C.D.G had admitted that it was
stupid thing to do but in the most recent hearing, he has stated in his affidavit that ’it
was false allegation’ and has tried to discredit J.C.E’s evidence also.
There have been other incidents also such as fleeing away with children.
The ongoing lack of insight into C.D.G’s past behaviour is concerning and
legitimately concerns to J.C.E’s fears.

This case is similar to the case of Riaz v. Ul Islam, 2019 ONCJ 108. In this case, the
father was granted supervised access to his two-year-old child for two hours every
two weeks. After the continuance for two years, the father sought for the removal of
the conditions of the supervision.

The Court, based on the evidence from the supervised access centre found that no
critical reports were found during regular visits and this was considered material
change but yet there are evidences which do not support variation in the existing

11
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
order as some behaviours of the father were not child – focused such as questioning
of the child, reframing the question to extract answer from the child, insisting child to
display affection in a certain way, questioning child about the care received while
residing with the mother etc.
There is also evidence of the parties’ difficulties in communication, trust, motivation
and accepting each other’s role in the life of the child. In fact, the father believed that
the mother was behaving like controller and his contact with the children and mother
believed that father was a bad role model and would discredit her.
The Court concluded that despite a parenting course, the father had not gained
insight and did not understand how his behaviour will impact the child.

There are indication of similar factors as in case of Riaz case though that was on a
bit extreme facts than this case, such as inappropriate questioning by C.D.G to
M.D.E which would increase if unsupervised was the concern of J.C.E, evidence of
ongoing communication problems and a trust breakdown between the parents.
C.D.G has been doing the right things and there have been material changes been
seen but more changes have to occur before changes to access and custody can
happen. Much time has not passed since the last order and C.D.G has started the
counselling recently to show its positive effects apart from respectful texting which is
a commendable improvement. But it will yet require a lot of time to solidify this goos
changes into new normal.
Another fact that C.D.G has accepted during the hearing that he has done everything
being asked to do by J.C.E shows that he does not fully think that there are more
changes required to make J.C.E less fearful and children get to enjoy best of both of
the parents12.

12
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
 DECISION OF THE COURT
Though it is difficult to find supervisors, but for now, the judge is persuaded that
ongoing supervised access is in the best interests of the children. Further
improvement should be seen in communication ability, trust and the progress in the
counselling sessions including greater insights and less blaming. Reduced stress
level between the parents as this would negatively affect the child.
Since, only two months have passed since the last order, the Judge does not believe
it is a long time enough to observe a change.
The Judge declares this judgement as an interim one and as J.C.E has already
stated that C.D.G genuinely cares for children and is much involved father and loves
children very much. The status of the judgement will no remain so forever but for the
time being, it is in the best interests of the children is in having stability by residing in
the house with their mother while seeing their dad as often as possible by phone and
video calls and also in-person visits with supervision.
J.C.E should provide generous access as she has in the past.
Due to lack of trust between both the parties, it would not be appropriate for C.D.G to
have regular access to garage. If there are further improvements in their ability
communicate, but at this stage that level has not yet reached. It is according to J.C.E
to give free consent to C.D.G’s attendance at the garage at any time.
According to Section 16(7) of the Divorce Act allows the Court to include a term in an
order requiring the parent who has custody and intends to change the place of
residence to notify the parent who has access of the change, the time, and the new
place of residence at least 30 days or more before the change.
If J.C.E intends to change the place of residence of the children, she is supposed to
provide 90 days notice to C.D.G.
The rest of the order remains unchanged13.
Later C.D.G asked the Judge as to when will he get the unsupervised equal custody
of the children to which Judge replied that he had started doing the right things but
more time need to pass and she cannot tell as to how much more time will it take.

13
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
 CONCLUSION

Canadian Association for Equality (CAFE) stands for the long overdue
implementation of presumptive equal shared parenting into the Canadian Divorce Bill
and currently Bill C -78 is changing the Canadian Divorce Law on a federal level but
forgot about equal shared parenting of the children at all levels.
Canadians for decades have been supporting the presumption of equal shared
parenting and shared parenting with an overwhelming majority of 70 percent.
Worldwide it has been recognised that children need both the parents and should
have access to both mother and father irrespective of divorce or break up.
Recently studies confirm that shared parenting means happier, healthier and more
successful children rather than the ones where this arrangement is not in place.
Children who have similar access to both the parents are better performers at school
and are less likely to drop out of the college and be a part of addiction or criminal
activities or committing suicide14.
It should be clearly understood that whatever the decision regarding custody of the
children is taken should be based solely in the best interests of the children only. It is
the children who are suppose to have access to the parents and not the other way
around. They should not be treated as property by the parents for any reason and
their interests should always be prioritised above everything. They should not be
forced with any decision against their wishes or will.
Currently, there is lack of proper implementation family laws and also some of the
laws are misguided in the matter leading to elimination of one parent from the lives of
the children after family breakups. Usually fathers are alienated but mothers are also
affected by these decisions.
Hopefully, Canada takes all the above points into consideration and helps in shaping
the good future of the children as well as their families.

14
https://equalitycanada.com/bill-c-78-must-recognize-children-need-both-parents/
 BIBLIOGRAPHY AND REFERENCES
https://equalitycanada.com/bill-c-78-must-recognize-children-need-both-parents/
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1380/index.do
https://www.yukoncourts.ca/sites/default/files/2020-09/2020_yksc_11_jce_v_cdg_errata.pdf
https://www.justice.gc.ca/eng/rp-pr/fl-lf/parent/2004_3/term.html
https://www.ourfamilywizard.com/blog/benefits-shared-parenting
https://minellalawgroup.com/blog/10-factors-used-to-determine-if-a-parent-is-unfit-for-custody/
https://www.justice.gc.ca/eng/rp-pr/fl-lf/parent/2004_3/term.html