R. v. P. – Equal Shared Parenting and Justice Pazaratz at his best

This decision rendered on 5 July 2021 is yet another example of Justice Alex Pazaratz at his best.  We have two seemingly dysfunctional parents (at least when it comes to their ability to constructively engage in the most basic of communications with each other concerning their children).

Justice Pazaratz is the master of both understatement and super organization.  His decisions (and particularly this ‘point form’ like decision) are a pleasure to read.  We learn from this decision that if high-conflict parents are going to agree to an equal shared parenting order in terms of residential time and decision-making (which the parents in this case indeed did in November 2019), then you had best make d**n sure that you also have in place an expeditious and effective dispute resolution mechanism.  Ie. Parental Coordinator.

The parents disagreed on just about anything and everything.  A school decision had to be made now and the parents just could not make it.  So Justice Pazaratz made that decision.  He adopted the mother’s proposal.  However, the judge took the opportunity to provide us with some guidance about how to approach shared parenting (joint custody).

Paragraph 19(g): ”I thought “shared parenting” was about promoting good decisions – not indecision or delegation.”

Paragraph 30 (e): “Shared parenting is not intended to be a competition.  It’s not a zero-sum game where you can’t let the other parent “win”, because that means you “lose”.

And let us look at the wise words from paragraphs 36 to 39:  [my emphases added]

[36]   But just as outdated labels are to be avoided because they conveyed the wrong message – we have to ensure that our currently-favoured parenting designations convey the right message.

1. Shared parenting is not a prize. Or a reward. Or a badge of entitlement.
2. It’s not about rights. It’s about responsibilities.
3. It’s not an acknowledgement of past parenting. It’s a commitment to future parenting.
4. It’s not about soothing adult egos (although that’s a helpful side-benefit).
5. It’s about creating precious opportunities.
6. Opportunities for both parents to maintain a meaningful role in their children’s lives. To make enlightened and important decisions in a mature, selfless, cooperative, child-focused manner.
7. Opportunities for children to have the best of both worlds. To benefit from the love, guidance, involvement, insight, culture and commitment of each parent. Even if the parents aren’t together.  Even if the parents don’t like each other anymore.
8. Opportunities for parents to solve problems.
9. But not opportunities for incessant argument and obstruction.

[37]  Shared parenting may be desirable or aspirational.  But it’s not automatic.  And it’s definitely not to be taken for granted.

1. In some families it’s inevitable.
2. In some families it’s achievable.
3. In some families it’s worth a try.

[38]   But as this court stated in Izyuk v Bilousov 2011 ONSC 6451 (SCJ) (prior to the amended legislation):

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[39]  Shared parenting:

1. It’s not exactly “Use It or Lose It”.
2. More like “Abuse It and Lose It”.

In this blog and elsewhere, we have for a very long time argued that there should be a legislated rebuttable presumption for equal shared parenting.  But ESP just does not work in every single situation.  This case is one where it was not working at least in terms of decision making.  Parents in an ESP regime must realize that they do not have to “win” every battle.   Compromise and even acquiescence is sometimes the better part of valour.  Exposing kids to parental conflict is bad.  Anything that reduces conflict is good.  To make ESP work parents must dedicate themselves to putting their children’s interests first.  In high-conflict cases they simply must have a Parental Coordinator in place from the get-go or at least have access to an effective mediator before they run off to court.

The father in this case was fortunate that Justice Pazaratz did not cancel the ESP regime altogether.

Let this decision be a warning to those parents who must win at all costs.  Read and reread this portion of His Honour’s decision:

Equal Shared parenting is not intended to be a competition.  It’s not a zero-sum game where you can’t let the other parent “win”, because that means you “lose”.