Document Type

Working Paper

Publication Date

2011

Subjects

Children; Custody; Joint Custody; Joint Guardianship; Presumptions

Abstract

This paper examines the treatment of joint custody in the British Columbia Court of Appeal from 1996 through 2008, comparing to the “cautious” approach taken by the Ontario Court of Appeal. The B.C. Court of Appeal has taken a strong stance against the use of presumptions, either for or against joint custody. However, in a society and a legal system that increasingly favours shared parenting, the lack of a cautionary approach to joint custody can lead to complacency about its appropriateness in circumstances that either generate risk (to a parent or a child) or are not conducive to consensual decision-making. Moreover, the ability of B.C. judges to order joint guardianship (which usually connotes some form of joint decision-making) even when joint custody is deemed inappropriate suggests that the trend towards some form of joint award is quite strong. That said, judges often craft an award that preserves final decision-making for one parent.

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