Case Summary: Breakdown of Shared Parenting Plans
Written by Pamela Cross, LLB, LLD
This was a long and bitterly fought case, that played out over five years of a young child’s life. In 2019, Justice Eberhard made a consent order that the parents would share the care of their child on a week-about schedule and make decisions relating to the child jointly. This arrangement continued despite seven very serious criminal charges laid against the father, followed by a short-lived reconciliation between the parents.
As Justice McDermot, who heard the trial in this case in 2024, said:
“Unfortunately, that parenting plan proved to be spectacularly unsuccessful.”
The father was subject to bail conditions that prevented him from communicating with the mother. Despite this major roadblock to the shared decision-making regime, and the direction to the father from the motions judge that he change the bail conditions to allow communication for the purpose of decision-making related to the child, he did not do so. As a result, for four years, the mother had to communicate through the father’s sister when decisions had to be made about the child. However, as Justice McDermot wrote, this arrangement “was not much better than communicating directly as [the sister] was clearly a strong advocate for [the husband].”
By the time of the trial, which had been delayed and adjourned over a very long time, the mother and child had relocated some three hours distant from where both parents had been living, which made the parenting time arrangement unworkable, and the disagreements between the parents were so serious that they put the child’s best interests and health in jeopardy.
The father was unrepresented at trial. Parenting time and decision-making responsibility, as well as child support, were the issues at trial. The father also wanted the mother ordered to return the child to what had been their habitual residence. In addition to the evidence of the mother and father, the judge had a report from the Office of the Children’s Lawyer that had been completed nearly three years before the trial began.
Justice McDermot found the father’s evidence to be “less than credible for a number of reasons:”
- He was evasive and inconsistent during cross-examination
- His evidence was “simply unbelievable,” including his claim that insulting and vulgar text messages sent from someone with his name had come from an unknown person who just happened to have the same name as he did
- He did not take responsibility for his actions; instead blaming others
On the other hand, the judge found the mother’s evidence “more credible and direct.”
“Although at times, defensive and argumentative, I am cognizant that she has suffered family violence and was being cross-examined by the perpetrator of the abuse suffered by her.”
Justice McDermot also said he found her answers to questions to be responsive and honest.
The judge found the OCL report to be dated and no longer relevant, but he noted his concerns about its apparent reliance on the myth and stereotype that a reconciliation affects the credibility of complaints by a spouse about family violence by the other:
“The mother’s ambivalence to separating from the father is a common reaction this court sees in victims of domestic violence. It is often difficult for victims of domestic violence to extricate themselves from abusive relationships. . .
“The implication in the report is that [the mother’s] complaints about domestic violence lack credibility because of the subsequent reconciliation with [the father] for a six month period. . . Family violence contraindicates a shared care and shared decision-making parenting plan precisely because it involves coercive control by one party over another . . . . To suggest that [the mother’s] inconsistency in continuing in the abusive relationship reflects on her credibility is a conclusion that continues that stereotyping, which is a factor that I choose to ignore.”
Justice McDermot also commented on the communication issues between the parents:
“to successfully co-parent a child with an order for shared decision-making, . . . there must be a history of reasonable communication between the parents . . . it is also, in my view, essential to a successful shared care arrangement. . . . Rarely have I seen parties who are less able to talk to one another about their child in order to act together in his best interests . . . .Many of the communications difficulties can be laid at the feet of [the father.]”
He made a finding of both physical and psychological family violence, writing, in part:
“Gone are the days when judges and lawyers assumed that family violence committed “between parents was irrelevant to parenting issues.”
In making this finding, he relied on:
- the multiple criminal charges the father was facing
- a recorded altercation that, in the judge’s words: “on the balance of probabilities . . . is a recording of family violence perpetrated against [the mother] by [the father]”
- demeaning and abusive text messages from the father to the mother
- videos posted by the father on TikTok
Justice McDermot’s decision noted that “Neither of these parents have a lot to be proud of.” Nonetheless, he varied the existing final order to give the mother sole decision-making responsibility, to have the child’s primary residence with the mother in the community to which she had relocated and to maintain the father’s parenting time as it was:
“Although neither parent is an ideal parent, I find that the best interests of [the child] would be better met by him remaining in the care of [the mother] in [the community she had relocated to] and in his present school.”