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Joint Custody and Guardianship in the British Columbia Courts: Not a Cautious
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Joint Custody and Guardianship in the British
Columbia Courts: Not a Cautious Approach
Susan B. Boyd*
1. INTRODUCTION
In July 2010, the British Columbia Ministry of the Attorney-General released
a White Paper proposing major family law changes, including to child custody
law.1 The concepts of “custody” and “access” would be eliminated and replaced
with “guardianship” and “parenting time”. Separating parents would both be de-
fined as guardians and would be able to exercise all parental responsibilities, in-
cluding day-to-day care and control, unless a court order or an agreement stated
otherwise.2 As a result, both parents would presumptively be legal guardians upon
separation should this law reform pass, introducing a form of joint custody.3 In
order to consider the impact of these proposed reforms, it is necessary to under-
stand the current legislative scheme in British Columbia, and how it has been used
by judges. That is the objective of this article.
British Columbia’s current family law statute, the Family Relations Act, has
since the late 1970s used the concepts of “custody” and “access” alongside the con-
cept of “guardianship”.4 Custody and access are undefined in the statute but have
the meanings that are conventionally assigned to them in other Canadian jurisdic-
tions.5 Guardianship is far less familiar to Canadians outside British Columbia,
since most provinces have absorbed the concept of guardianship of the person into
* Professor, Faculty of Law, University of British Columbia. This project was funded by
the Foundation for Legal Research. Thanks to Bree Makohn and Cynthia Poblador for
research assistance and to Claire Young for reading a draft. Special thanks to Rollie
Thompson for his constructive suggestions.
1 http://www.ag.gov.bc.ca/legislation/pdf/Family-Law-White-Paper.pdf Ministry of At-
torney General Justice Services Branch, Civil Policy and Legislation Office, White Pa-
per on Family Relations Act Reform Proposals for a new Family Law Act, July 2010.
2 Ibid. at 53, 54.
3 The definition of “joint custody” is notoriously vague. As Martha Shaffer notes, some
courts use the term to connote arrangements giving both parents shared decision-mak-
ing authority over significant child-rearing issues, while others use it to mean shared
physical care: Martha Shaffer, “Joint Custody Since Kaplanis and Ladisa — A Review
of Recent Ontario Case Law” (2007) 26 C.F.L.Q. 315 at 321. Under the proposed re-
forms in B.C., the powers of a guardian would include both aspects, unless varied by
court order or agreement. In this article I will generally use “joint legal custody” when
it is important to denote the former and try to specify joint or shared physical custody
or care when that is involved.
4 Family Relations Act, R.S.B.C. 1996, c. 128, ss. 27–35.
5 Section 21 states that access includes visitation.
224 CANADIAN FAMILY LAW QUARTERLY [29 C.F.L.Q.]
custody.6 Section 25(1) of B.C.’s Family Relations Act currently defines a guardian
as “both guardian of the person of the child and guardian of the estate of the child”
and then refers back to old English law to determine the powers of a guardian.7
Section 27 sets out rules for the allocation of guardianship, most of which would be
changed under the White Paper proposals.
Under current section 27(1), the mother and father of a child are joint guardi-
ans, whether or not married to each other and for so long as they live together,
unless a court otherwise orders. The parents can also make an agreement under s.
28 to be joint guardians or to specify that one of them is sole guardian. If they have
been joint guardians and are now separated, section 27(2) makes them joint guardi-
ans of the child’s estate, but the parent who usually has care and control of the child
is the sole guardian of the person of the child unless a court orders otherwise, or
they agree otherwise. If they have not been married during the life of the child or
10 months prior to the birth, and are not joint guardians under section 27 or a court
order, the mother is the sole guardian under section 27(5). Section 29(1) states that
if a joint guardian dies, the survivors or sole survivor continue as joint or sole
guardians respectively. Under section 29(2), if a (sole) guardian dies, a surviving
mother or father of the child who is not a guardian at the time of the deceased’s
death does not become a guardian unless appointed as such under a court order.
The benefits of a joint guardianship order (or agreement) are that the surviving
parent is automatically a guardian on death of the other parent. Guardians can also
apply to a court for directions concerning a question affecting the child under sec-
tion 32 of the Act, and are also able to exercise authority in relation to a child when
the child is with them. Judges also use joint guardianship orders alongside a sole
custody order to emphasize the ongoing responsibilities of both parents and, likely,
to try to avert further litigation by giving a non-custodial parent a sense of buy-in
and to encourage getting on with the process of post-separation parenting. Joint
guardianship may also be ordered where there is a concern that one parent will fail
to keep the other parent informed and involved in the children’s lives.8
The Family Relations Act goes on in section 34 to outline which persons may
exercise “custody” over a child, using similar rules to those defining guardianship.
While they live together, the father and mother exercise custody jointly, but if they
live separate and apart, the parent with whom the child usually resides has custody.
Court orders or agreements can modify these rules. Noticeably, both the provisions
on guardianship and those on custody presume the parents of a child to be of oppo-
site sex and the few cases involving same sex parents have had to grapple with this
6 That said, since 2005, Alberta has used guardianship instead of custody: Family Law
Act, S.A. 2003, c. F-4.5, s. 21.
7 Anson v. Anson, an oft-cited 1987 decision, defined the “ancient” concept of “guardian-
ship” as the full bundle of rights and duties assumed by an adult in respect of a child
and stated that under both federal and B.C. legislation, “custody” has come to hold a
similar wide meaning, going beyond a narrower conception of physical care and
control. Anson v. Anson, 1987 CarswellBC 9, 10 B.C.L.R. (2d) 357 (B.C. Co. Ct.).
8 JP Boyd’s BC Family Law Resource:
http://www.bcfamilylawresource.com/03/0302body.htm
JOINT CUSTODY AND GUARDIANSHIP IN THE B.C. COURTS 225
out-of-date language.9
Not surprisingly, the overlap between the two concepts of custody and guardi-
anship in B.C. law has been the source of some confusion and it remains far from
clear how they should be distinguished. For example, what exactly does it mean if
one parent is awarded sole custody but the parents share joint guardianship? To
what extent is joint guardianship the same as joint custody? Indeed, in 1990 the
Court of Appeal stated in Lennox v. Frender that the terms “guardianship”, “cus-
tody” and “care and control” are “often used without precision” but “may, in some
circumstances, have different meanings from each other.”10 The Court suggested
that it would be better if parties and/or courts spelled out what is intended, for
instance, in minutes of settlement, rather than relying on legal jargon. It reviewed
earlier B.C. Supreme Court cases11 indicating that joint guardianship normally
meant that each parent would have a full and active role in providing a sound
moral, social, economic and educational environment for the children, and that they
should consult with one another in planning religious upbringing, educational pro-
grams, athletic and recreational activities, health care (excluding emergency), and
significant changes in the social environment. Neither party should exercise this
power and authority to frustrate or unduly affect the life of the other, and each
should exert best efforts to co-operate in future plans consistent with the children’s
best interests. Notably, this power under joint guardianship relates more to consul-
tation and decision-making than to care and control. It thus implies that joint guard-
ianship means something less than shared care. As the B.C. Court of Appeal indi-
cated recently in Falvai v. Falvai, an award of joint guardianship can diminish the
broad concept of (sole) custody, which normally entails the full bundle of rights
relating to both physical care and control and decision-making authority.12 Al-
though custody can be narrowed to the notion of physical care and control through
an award of joint guardianship, this award does not necessarily connote fully shared
rights and responsibilities.
Moreover, completely joint decision-making is not always included in a joint
guardianship order. The “Joyce model” of joint guardianship is fairly often used by
B.C. judges13 and in negotiated agreements to designate one parent as the final
decision-maker in case of disagreement.14 Under this model, parents must consult
with each other and provide and obtain information about the child’s development
9 In T. (K.) v. D. (P.), 2005 BCSC 1659, 2005 CarswellBC 2654 (B.C. S.C.), a case
involving two lesbian co-parents, A.F. Wilson J. did not declare the non-biological
mother to be a legal parent, but did award her joint guardianship and the same access
rights that had existed since the parties separated. Sole custody remained with the birth
mother, who was found to be the primary caregiver.
10 Lennox v. Frender, 1990 CarswellBC 165, 27 R.F.L. (3d) 181 (B.C. C.A.).
11 Quoting especially from Gansner, L.J.S.C. in Charlton v. Charlton, 1980 CarswellBC
16, 19 B.C.L.R. 42 (B.C. S.C.) at 45 [B.C.L.R.].
12 Falvai v. Falvai, 2008 BCCA 503, 2008 CarswellBC 2626 (B.C. C.A.); additional rea-
sons at 2009 CarswellBC 2380, ¶36-37 (B.C. C.A.).
13 Sometimes in claims for custody made primarily under the Divorce Act, R.S.C. 1985,
c. 3 (2nd Supp.)
14 http://www.familylaw.lss.bc.ca/resources/fact_sheets/guardianship.asp
from each other and from third parties. Decisions are to be made after consultation
between parents. In the event of conflict between them, however, the “primary par-
ent” is empowered to make the final decision, subject to the right of the other par-
ent to ask the court to review the decision under section 32.
Despite the confusion over terminology, B.C. judges have employed the tools
of custody and guardianship creatively to deal with the complex scenarios that arise
when parents separate and cannot agree on a parenting arrangement. This article
uses a subset of cases in which joint custody was at play in B.C. trial courts in 2000
and 2007 to explore the use that has been made of the various concepts of custody
and guardianship that currently characterize B.C. law. As will be seen, numerous
awards of some form of joint custody or joint guardianship are made, but these
joint awards are frequently modified by a more specific allocation of parenting re-
sponsibilities as between the parents. This modification often results in an alloca-
tion of greater caregiving (primary residence) responsibility to one parent. Less
often, primary or final decision-making power is also allocated to one parent.
This article’s study of how these concepts have been used in the past may
offer some insight as to how a new regime using only “guardianship” and “parent-
ing time” proposed in the White Paper might operate. Before reviewing the trends
in the case law, I briefly outline some of the debates surrounding the trends towards
joint custody awards in Canada and elsewhere and relate those trends to the use of
joint custody and joint guardianship in the B.C. trial courts.
2. JOINT CUSTODY TRENDS AND CONCERNS

Joint custody awards have been on the rise in Canadian courts since the
1980s,15 although many of these awards involve joint legal custody (joint decision-
making) rather than joint physical custody or shared time.16 Research raises con-
cerns about any unreflective embrace of either joint legal or physical custody as a
panacea in the difficult field of post-separation parenting. Martha Shaffer’s review
of the social science literature on joint custody and parental conflict found that chil-
dren do not fare better after divorce in joint custody arrangements than they do in
sole custody and that some children may fare worse, including those in high con-
flict families.17 In addition, parental conflict significantly increases the risk of re-
15 Canadian statistics for 2003 indicate that in 44% of court-determined custody cases in
the divorce context, the outcome is an order for joint custody, which is more than
double the number from the mid-1990s and four times the figure when compared to the
late 1980s: Statistics Canada, ed. 2006. Women in Canada: A Gender Based Statistical
Report 5th Ed, Ottawa: Target Group Project, 103–116. It is reasonable to assume that
the percentage of joint custody awards have risen since 2003.
16 The B.C. Court of Appeal made it clear in Lennox, above note 10, that a joint custody
order might well provide for the child to reside with one parent while the other had
access. When “shared parenting” or “shared custody” is used by the B.C. Court of
Appeal, it is usually in relation to physical care of the child, e.g. where the child lives
with each parent alternately. See, e.g., Nunweiler v. Nunweiler, 2000 BCCA 300, 2000
CarswellBC 958 (B.C. C.A.).
17 Martha Shaffer, “Joint Custody, Parental Conflict and Children’s Adjustment to Di-
vorce: What the Social Science Literature Does and Does Not Tell Us” (2007) 26
C.F.L.Q. 286 at 287. [“Joint Custody, Parental Conflict”]
duced well being on the part of children who experience their parents’ divorce.
Recent studies conducted in Australia, which introduced a presumption of equal
shared parenting responsibility in 2006, raise similar concerns.18
Some Canadian appellate courts have cautioned against indiscriminate use of
joint custody awards. In a 2005 decision in Kaplanis v. Kaplanis,19 the Ontario
Court of Appeal reiterated its cautious approach to ordering joint custody in con-
tested cases.20 Specifically, it held that joint custody should not be ordered in such
cases unless there is clear evidence that the parents are able to communicate effec-
tively with one another, despite animosity and personal differences. Nor should
judges order joint custody in the hope that it would improve the parenting skills of
the parties. One parent’s opposition to joint custody would not, without more, suf-
fice to block such an award.21 However, the message was clear that joint custody
will seldom be in a child’s best interests if the parents are not capable of effective
communication, as they will not be capable of jointly acting in their children’s best
interests. To this extent, the Ontario Court of Appeal message was consistent with
the social science findings on the negative link between conflict between parents
and children’s well being.
The exact meaning of effective communication is unclear in Kaplanis, and
Shaffer’s study found that this lack of clarity caused some difficulties in post-Ka-
planis case law.22 As well, in their focus on communication and cooperation, some
post-Kaplanis decisions lost sight of the point that joint custody should only be
considered where both parents have a strong claim to custody based on the relevant
statutory factors speaking to children’s best interests, and should not be ordered if it
is clearly in the children’s best interest to be in the custody of one parent. Problem-
atic parental conduct such as a father stalking the family was sometimes over-
looked in the focus on communication and cooperation that Kaplanis generated.23
That is, the focus on communication and cooperation in Kapalanis was meant to
18 Jennifer E. McIntosh and Richard Chisholm, “Cautionary notes on the shared care of
children in conflicted parental separations” (2008) 14(1) Journal of Family Studies
37–52; Helen Rhoades, “The Dangers of Shared Care Legislation: Why Australia
Needs (Yet More) Family Law Reform” (2008) 36(3) Fed. L. Rev. 279–299.
19 Kaplanis v. Kaplanis, 2005 CarswellOnt 266, 10 R.F.L. (6th) 373 (Ont. C.A.). For a
review of case law after Kaplanis, see Martha Shaffer, “Joint Custody Since Kaplanis
and Ladisa — A Review of Recent Ontario Case Law” (2007) 26 C.F.L.Q. 315. [“Joint
Custody Since Kaplanis”]. A recent review of Ontario Court of Appeal cases on joint
custody reveals no significant departure from the rulings in Kaplanis and its sister case
Ladisa v. Ladisa, 2005 CarswellOnt 268, 11 R.F.L. (6th) 50 (Ont. C.A.).
20 See the earlier, much cited cases of Baker v. Baker, 1979 CarswellOnt 367, 8 R.F.L.
(2d) 236 (Ont. C.A.) and Kruger v. Kruger, 1979 CarswellOnt 299, 11 R.F.L. (2d) 52
(Ont. C.A.).
21 Ladisa, above note 19, released the same day as Kaplanis, made this clear. In that case,
the Court of Appeal upheld a joint custody order despite the mother’s opposition and
the fact that high level conflict existed between the parents. Evidence had established
that the parents could, nevertheless, communicate effectively and put the children’s
interests ahead of their own.
22 Shaffer, “Joint Custody Since Kaplanis”, above note 19.
23 Shaffer, ibid. at 348-9.
apply only when two fit parents had credible custody claims, yet it was applied in
some cases where credible claims did not exist. As well, shared time was some-
times ordered even if joint custody itself was denied.24
Despite these concerns, Shaffer found that, overall, Ontario courts took a cau-
tious approach to joint custody in contested cases, making such orders sparingly.
She found only a few decisions to be ideologically driven, that is, where joint cus-
tody was awarded in the face of conduct that was clearly controlling, manipulative
or deceitful.25 However, she raised concerns about the number of assessments that
recommended joint custody, despite high levels of discord and problematic parental
conduct. She also cautioned against any legislative presumptions in favour of joint
custody, given the preponderance of cases involving destructive conduct by parents
(more often fathers).
British Columbia does not appear to have followed the same cautious ap-
proach to joint custody that the Ontario Court of Appeal demonstrated in Kaplanis
and earlier cases. Anecdotal evidence indicates that joint custody is now the de
facto starting point at custody hearings in B.C.26 Kaplanis has not yet been cited by
the B.C. Court of Appeal, although it has been cited in a few trial decisions.27 A
1994 decision of the B.C. Court of Appeal in Stewart v. Stewart28 adopted a simi-
24 Shaffer, ibid. at 352. This development is of even more concern now that the results of
studies on high conflict parents who engage in equal time parenting have begun to
emerge: Jennifer E. McIntosh & Richard Chisholm, “Cautionary notes on the shared
care of children in conflicted parental separations” (2008) 14(1) Journal of Family
Studies 37–52; Jennifer E. McIntosh, “Legislating for Shared Parenting: Exploring
Some Underlying Assumptions” (2009) 47(3) Family Court Review 389–400.
25 Shaffer, ibid. at 343.
26 For instance, Justice Donna Martinson suggested in 2007 that there is a growing trend
among judges in family law cases, particularly in the context of pre-trial settlement
conferences, to emphasize the importance of shared parenting so that children have the
benefit of contact with both parents: “Post-Separation Parenting — Submerged Gender
Issues”, National Judicial Institute Conference on Emerging Gender Issues — Why
Gender Equality Still Matters, Toronto, November 28–30, 2007. Full evidence about
issues such as conflict or abuse is not typically available at pre-trial settlement confer-
ences, which raises concerns about any trend towards emphasizing shared
arrangements.
27 A review of B.C. cites of Kaplanis prior to April 2010 found the following four cases:
Cuthill v. Cuthill, 2009 BCSC 1360, 2009 CarswellBC 2645 (B.C. S.C.) at para. 42
cites Valastiak v. Valastiak, 2006 BCSC 525, 2006 CarswellBC 862 (B.C. S.C.) (at
para. 13), which adopted the reasoning of Kaplanis on communication. In Cuthill, Jus-
tice Nathan Smith said (at para. 42): “Communication difficulty between the parties is
not necessarily a bar to an order for joint custody, but there are many cases where such
difficulties have led to the court to conclude that joint custody would not be in the best
interests of the child.” In T. (L.) v. T. (C.), 2008 BCPC 311, 2008 CarswellBC 2376
(B.C. Prov. Ct.), the Provincial Court found that communication difficulties militated
towards sole guardianship, with the mother retaining sole decision making authority,
though the father was to be consulted. Windle v. Windle, 2010 BCSC 18, 2010 Car-
swellBC 27 (B.C. S.C.) cites Cuthill and Valastiak. In all four cases, joint guardianship
was refused.
28 1994 CarswellBC 649, 2 R.F.L. (4th) 53 (B.C. C.A.).
larly cautious approach to joint custody in the face of communication difficulties,

stating that such awards should be made rarely and only under circumstances where
the parties are totally in agreement and for all intents and purposes do not need the
assistance of the court. However the Court’s 1996 decision in Robinson v. Filyk29
made a strong statement against the use of presumptions in custody decisions, sig-
nificantly diluting Stewart’s impact. Huddart J.A. indicated that any use in a judge-
ment of a presumption in favour of or against either joint or sole custody is inap-
propriate. Instead, the only issue is a child’s best interests, to be “found within the
practical context of the reality of the parents’ lives and circumstances”.30
Since its 1996 decision in Robinson, the B.C. Court of Appeal has eschewed
the cautious approach to joint custody, although it does look to evidence of the
ability to communicate and cooperate when considering the potential for joint cus-
tody to work.31 Moreover, in circumstances where joint decision-making is not
workable for the purposes of a joint custody order, joint guardianship can neverthe-
less be ordered alongside sole custody. At least some level of consultation in rela-
tion to decision-making is implied. Judges also seem to award it in order to empha-
size the responsibilities of both parents.
Thus, in British Columbia, the potential for judges to order joint guardianship
under the Family Relations Act in conjunction with sole custody muddies the trends
in relation to joint custody, particularly given that it has often been defined in a
manner very similar to joint legal custody.32 That is, both joint custody and joint
guardianship imply joint decision-making and a duty to consult, regardless of
whether the child lives primarily with one parent or not. On the other hand, both
joint custody and joint guardianship can be modified by the designation of one
parent as either the primary or the final decision-maker, for example under the
Joyce model of joint guardianship described in the Introduction. However, the
cases indicate that a primary decision-maker is named less often than is a primary
residence parent. As a result, both joint guardianship and joint custody seem to
imply joint decision-making, unless stated otherwise.
The study that forms the basis of this article was motivated mainly by the
question of how British Columbia trial judges use the tools of custody and guardi-
anship in their decisions as well as to what extent they heed the warnings about the
overuse of joint custody, especially in situations involving significant conflict. In
an attempt to track trends in the B.C. trial courts (including the Supreme Court and
the Provincial Court), I searched for cases that dealt with joint custody as a signifi-
cant issue in the years 2000 and 2007, using LexisNexis. The year 2000 was chosen
because enough time had passed to be able to assess the impact of Robinson v.
29 1996 CarswellBC 2664, 84 B.C.A.C. 290 (B.C. C.A.).

30 Robinson, ibid. at para. 29, quoting from Gordon v. Goertz, 1996 CarswellSask 199,
1996 CarswellSask 199F, [1996] 2 S.C.R. 27, ¶59 (S.C.C.).
31 For a review of B.C. Court of Appeal decisions on joint custody since Robinson, see
Susan B. Boyd, “No Presumptions! Joint Custody in the British Columbia Court of
Appeal” in Sanjeev Anand, ed., Children and the Law: Essays in Honor of Professor
Nicholas Bala (Irwin Law), forthcoming.
32 E.g. Lennox, above note 10, Anson, above note 7.
Filyk, which was decided in 1996.33 Cases for 2007 were reviewed in order to
assess any shifts since 2000 (and because the study was done in 2008, making 2007
the most recent year for which all cases could be reviewed). Cases that did not
resolve an issue dealing with custody per se were excluded, which left 66 cases for
2000 and 64 cases for 2007.
In analyzing these decisions, particular attention was paid to the ways in
which judges dealt with factual concerns related to ability to communicate or coop-
erate as well as problematic conduct such as that identified by Shaffer in her review
of the Ontario cases, including abusive or very controlling behaviour, stalking, or
refusal to contact children. In addition, given the relevance of the “unbundling” of
custody rights and responsibilities that was revealed in my earlier study of the ap-
pellate decisions34 — for instance, sole custody being conjoined with a joint guard-
ianship order; or joint custody conjoined with an award of a primary parent in
terms of residence and/or decision-making — I was interested in how trial judges
rationalized such orders, and whether they mediated trends towards either sole or
joint custody in British Columbia.
3. THE B.C. TRIAL COURTS 2000 AND 2007

At the outset, I offer a few caveats. First, any figures based on the 2000 and
2007 cases cannot be regarded as statistically significant, and, of course, tell us
little about outcomes in disputes that settle out of court. Second, I included both
interim and trial decisions, as well as variations, because when an interim decision
is made in a case that does not later make it to trial, the interim decision may effec-
tively become the final decision. Third, the cases excluded from the reviewed pool
in both years included some cases related to custody, for instance, some applica-
tions for relocation. However, if joint custody per se was not at issue, I did not
include these cases.35 Fourth, no cases in the included pool dealt with gay or les-
bian parents.
Despite these limitations, the cases point towards some interesting — and pos-
sibly troubling — trends in judicial determinations in these two years. I will first
offer a brief overview and then look at the joint custody orders, followed by the
sole custody orders, reviewing the two years separately within each category. As
we will see, joint custody orders were sometimes modified by an award of primary
residence or primary decision-making, and sole custody orders were sometimes
modified by an award of joint guardianship.
Joint custody was ordered in a minority (about 42%) of the 2000 decisions,36
whereas in 2007, joint custody was awarded in a majority (about 58%) of the deci-
sions. Significant numbers of joint custody awards designated a primary residence
33 Robinson, above note 29.

34 Boyd, above note 31.
35 The excluded cases themselves would also provide an interesting study; several dealt
with the consequences of a joint custody order for child support, or relocation.
36 The percentages for a given year in this article do not always add up to 100%. In 5
decisions in 2000, for instance, a judge declined to issue a specific order for sole or
joint custody. At least one case awarded sole custody over one child and joint for the
others, and thus was counted twice.
parent (41% in 2000 and 81% in 2007). Although it would be risky to predict a
trend based on the cases reviewed, reading the joint custody figures in both years
together with the number of sole custody awards that were combined with joint
guardianship (47% of the sole custody awards in 2000 and 37% in 2007) suggests
that the overall trend in the B.C. trial courts is in favour of some form of joint legal
custody (that is, some form of joint decision-making). That said, 38% of the joint
custody decisions in 2000 and 30% in 2007 included designations of a primary
parent in relation to decision-making, for instance, on the Joyce model.
(a) Joint Custody

(i) Joint Custody in 2000
As mentioned, joint custody awards were made in about 42% of the cases (28
out of 66) in which joint custody was an issue in 2000. Half of these awards were
made in the face of evidence that the parents had difficulties communicating or
shared a history of conflict or non-cooperation. The reasons adduced by the judges
for so doing included the following:
(i) joint custody was seen as enhancing maximum contact;37
(ii) joint custody was seen as equalizing the positions of the mother and
father and thereby lessening conflict between them;38
(iii) deference to the wishes of the parties for joint custody even if sole
custody was the preferable order in the mind of the judge;39 and
(iv) absence of any valid reason to vary a joint custody order.40
In most of these decisions awarding joint custody notwithstanding the evi-
dence of parental conflict or their inability to communicate, the “best interests of
the child” was cited as the paramount consideration for awarding joint custody, in
37 N. (L.K.) v. M. (W.J.), 2000 BCPC 44, 2000 CarswellBC 3274 (B.C. Prov. Ct.),
Malahoff v. McLeod, 2000 BCSC 998, 2000 CarswellBC 1399 (B.C. S.C.), Briglio v.
Briglio, 2000 BCSC 1080, 2000 CarswellBC 1505 (B.C. S.C.), L. (L.K.) v. L. (R.J.),
2000 BCSC 1111, 2000 CarswellBC 1544 (B.C. S.C.); additional reasons at 2000 Car-
swellBC 2723 (B.C. S.C.) [actually an order for divided custody — equal time and
specifically allocated decision-making — in the face of both parents saying that joint
custody would not work], Jamieson v. Loureiro, 2000 BCSC 1389, 2000 CarswellBC
2015 (B.C. S.C.), S. (R.) v. R. (G.), 2000 BCPC 145, 2000 CarswellBC 3312 (B.C.
Prov. Ct.), Pullman v. Pullman, 2000 BCSC 1654, 2000 CarswellBC 2389 (B.C. S.C.);
additional reasons at 2001 CarswellBC 111 (B.C. S.C.), Hearn v. Hearn, 2000 BCSC
1530, 2000 CarswellBC 2065 (B.C. Master).
38 Wells v. Watson, 2000 BCSC 622, 2000 CarswellBC 783 (B.C. S.C.); additional rea-
sons at 2000 CarswellBC 1639 (B.C. S.C.), Corsie v. Corsie, 2000 BCSC 785, 2000
CarswellBC 1067 (B.C. Master), Graham v. Graham, 2000 BCSC 828, 2000 Car-
swellBC 1106 (B.C. S.C.), Landers v. Evans, 2000 BCSC 1146, 2000 CarswellBC
1568 (B.C. S.C. [In Chambers]), N. (L.K.), L. (L.K.), ibid.
39 Landmark v. Landmark, 2000 BCSC 932, 2000 CarswellBC 1378 (B.C. S.C.).
40 Frydrysek v. Frydrysek, 2000 BCSC 1720, 2000 CarswellBC 2431 (B.C. S.C.). How-
ever, the court said that a report on the views of the child should be prepared.
compliance with the directive in Robinson v. Filyk.41 In general, these cases indi-
cate a distancing from the caution in Stewart,42 and a willingness to risk joint cus-
tody in circumstances that may indicate unwarranted optimism that joint custody
awards can lessen conflict between parents.43
Both joint custody and joint guardianship were ordered in Landers, for exam-
ple, where the children were suffering from ongoing struggle and tension.44 In
Wells, the equality of the parents was prioritized even though the child was exposed
to “bickering and rancour” during transition and other contact between the par-
ents.45 Joint custody and joint guardianship were ordered regardless of this expo-
sure and the pending criminal proceedings against the father for an alleged assault
against the mother during a residential exchange. Sole custody was found to be
contrary to the child’s best interests in this case and it was said that such an award
would not prevent the dissension. Collver J. accepted the report of the psychologist
indicating that each parent was devoted and competent and that the five year old
boy was secure, resilient, strong, polite, and socialized. The psychologist concluded
that it was “important for [both parents] to be on an equal footing as parents, and to
accept the equivalence of their roles.”46 Collver J. accepted the expert’s opinion
that the prospects for communication and cooperation were reasonable, despite the
fact that both the judge and the expert had observed that the father, who had been
married twice before, was “slightly disdainful and judgmental of [the mother] at
times”.47 A very specific parenting plan was required in this case, as well as subse-
quent clarification by Collver J., which went into remarkable detail spelling out the
virtually equal time, speaking to the serious problems that the parents had in
cooperating.48
In a few cases, arrangements were set up to lessen the parental conflict, for
example, by recommending counselling for the parents.49 As we will see, more
such arrangements were mentioned in the 2007 joint custody decisions.
The remaining joint custody decisions for 2000 awarded joint custody or al-
lowed it to continue on the basis of reasons such as:
(i) the absence of any valid reason to vary a joint custody order or
agreement;50
41 Robinson v. Filyk, above note 29.

42 Stewart v. Stewart, above note 28.
43 E.g. Pullman, above note 37; Wells, Graham, above note 38.
44 Landers, above note 38 at para. 26.
45 Wells, above note 38 at para. 11.
46 Wells, ibid. Dr. Ley, quoted at para. 14.
47 Wells, ibid. at para 9.
48 Wells, ibid.
49 Briglio, above note 37.
50 Perrie v. Perrie, 2000 BCSC 15, 2000 CarswellBC 49 (B.C. Master), British Columbia
(Director of Child, Family & Community Services) v. M. (D.), 2000 BCPC 94, 2000
CarswellBC 3238 (B.C. Prov. Ct.), S. (K.R.) v. S. (C.A.), 2000 BCSC 1409, 2000 Car-
swellBC 2042 (B.C. S.C.); affirmed 2001 CarswellBC 628 (B.C. C.A.), Kassel v.
Louie, 2000 BCSC 1417, 2000 CarswellBC 1915 (B.C. S.C.).
(ii) the absence of any objection to a joint custody regime;51

(iii) evidence that parents could effectively cooperate with each other;52
(iv) the wishes of the child, in a case involving a child with physical
disabilities.53
By and large, these decisions cited the “best interests of child” as the basis for
the award, suggesting that joint awards are viewed as normally being in a child’s
best interests. The decision in M. (J.E.) v. H. (J.S.) indicates that if a father is inter-
ested and involved, a mother’s argument for primary care or residence based on
parenting history may be given little weight, assuming that no other factor particu-
larly contraindicates joint custody.54 As well, in a few cases, a joint custody award
was made in circumstances where the judge feared that a sole custody order would
give the custodial parent the ability to exclude the other.55
Despite this apparent push towards joint custody and affirmation of the equal-
ity of parents, more than half of the 29 joint custody judgements in 2000 varied the
“jointness” of the award by allocating primary parent responsibilities to one parent,
or splitting them. Twelve decisions specified that the children’s primary residence
was to be with one parent or that some children should go to one and some to the
other, with six primary residence awards going to the father56 and six to the
mother.57 (Two of these twelve decisions allowed certain of the children to choose
where they would primarily reside.58) Eleven decisions allocated primary or final
decision-making to one parent, or on the Joyce model. Some of these included the
primary residence cases, but, interestingly, not all. For instance, in R.S., the father
was given final decision-making authority, in the face of the mother’s allegations of
51 Rishi v. Nijjar, 2000 BCSC 1607, 2000 CarswellBC 2187 (B.C. S.C.). Possibly Collins
v. Morris, 2000 BCSC 1599, 2000 CarswellBC 2212 (B.C. S.C.); additional reasons at
2000 CarswellBC 2432 (B.C. S.C.) fits here, although the reasons for the joint custody
award are unclear.
52 Nelson v. Nelson, 2000 BCSC 1402, 2000 CarswellBC 1985 (B.C. Master), M. (J.E.) v.
H. (J.S.), 2000 BCSC 1559, 2000 CarswellBC 2116 (B.C. Master); reversed 2000 Car-
swellBC 3329 (B.C. S.C.), Kilpatrick v. Kilpatrick, 2000 BCSC 1566, 2000 Car-
swellBC 2211 (B.C. S.C.).
53 Bowden v. Bowden, 2000 BCSC 1795, 2000 CarswellBC 2578 (B.C. S.C.).
54 M. (J.E.), above note 52.
55 E.g., N. (L.K.), L. (L.K.), above note 37.
56 Landmark, above note 39, covering one child, Malahoff, above note 37, Morrison v.
Morrison, 2000 BCSC 1017, 2000 CarswellBC 1412 (B.C. S.C. [In Chambers]); addi-
tional reasons at 2000 CarswellBC 1809 (B.C. S.C.); additional reasons at 2001 Car-
swellBC 1423 (B.C. S.C.), Kassel, above note 50, Bowden, above note 53, covering
disabled child, Collins, above note 51, covering one child. Note: Landmark and Collins
are counted twice as primary care of the children was split between the two parents.
57 Archibald v. Archibald, 2000 CarswellBC 415, [2000] B.C.J. No. 402 (B.C. S.C.); ad-
ditional reasons at 2000 CarswellBC 1407 (B.C. S.C.); varied 2001 CarswellBC 2103
(B.C. C.A.); affirmed 2001 CarswellBC 2103 (B.C. C.A.), covering 2 children, Briglio,
Jamieson, above note 37, S. (K.R.), above note 50, Landmark, Collins, ibid.
58 Bowden, above note 53, covering the non-disabled child; Lambert v. Anderson, 2000
BCSC 1533, 2000 CarswellBC 2085 (B.C. S.C.), covering the 4 elder children.
assault and ongoing difficulties in communication and cooperation,59 even though

day to day care was shared. In Graham, primary decision-making was awarded to
the mother, whereas time was shared more or less equally.60 Prittie allocated pri-
mary decision-making to the father, taking into account the stress that ongoing in-
ability to cooperate on the part of the parents was causing to the child.61
Overall, then, in 2000, joint custody was sometimes equated with the best in-
terests of the child and appeared to be the effective starting point in many cases.
That said, the joint-ness of the award was varied in more than half of the cases.
(ii) Joint Custody in 2007

In 2007, in contrast to 2000, a majority (58%) of decisions (37 out of 64)
awarded joint custody, in about a third of these awards, in the face of some absence
of cooperation or ability to communicate. Absence of cooperation manifested itself
in various forms, including some quite alarming, so I will offer some detail to give
a sense of the sometimes very difficult circumstances in which parents are expected
to share custodial responsibilities.62
In Vanoni, the parents’ communications were “marked by rancour” and likely
to negatively affect the child over whom the parents were arguing, but Melnick J.
nevertheless found it to be in the best interests of the child to place her in the joint
custody and joint guardianship of both parents.63 In Szet, inability to communicate
was accompanied by anger management issues (on the part of the mother, who was
dealing with them) and control issues (on the part of the father, who was not).
Vickers J. stated that “[t]he use of, and threats to use, 911 and Ministry services
demonstrates the [father’s] efforts to regain control of his family” and that he was
satisfied that, “despite his denials, the [father] has taken every opportunity to in-
hibit his wife’s ability to develop a proper relationship with her daughters”.64 Nev-
ertheless, sole custody was not warranted. In D. (C.), the parties were on very poor
terms, described as trenchant animosity, which included arguing and confrontation,
and allegations of abuse and substance abuse. Despite the fact that “direct contact
59 S. (R.), above note 37.

60 Graham, above note 38.
61 Prittie v. Dorey, 2000 BCSC 1166, 2000 CarswellBC 1591.
62 Bernier v. Bernier, 2007 BCSC 659, 2007 CarswellBC 1002 (B.C. Master), Kelpin v.
Kelpin, 2007 BCSC 148, 2007 CarswellBC 187 (B.C. Master), Vanoni v. Vanoni, 2007
BCSC 11, 2007 CarswellBC 252 (B.C. S.C.), Szet v. Chan, 2007 BCSC 187, 2007
CarswellBC 290 (B.C. S.C. [In Chambers]), V. (P.) v. B. (D.), 2007 BCSC 237, 2007
CarswellBC 376 (B.C. S.C.), D. (C.) v. A. (W.), 2007 BCSC 268, 2007 CarswellBC
415 (B.C. S.C.), Z. (E.) v. N. (S.), 2007 BCSC 471, 2007 CarswellBC 672 (B.C. S.C.),
Vargas v. Berryman, 2007 BCSC 470, 2007 CarswellBC 684 (B.C. S.C.), D. (P.H.) v.
D. (M.L.), 2007 BCSC 863, 2007 CarswellBC 1377 (B.C. S.C.), Whittington v. Swan-
son, 2007 BCSC 1157, 2007 CarswellBC 2228 (B.C. S.C.), Nygren v. Nygren, 2007
BCSC 1789, 2007 CarswellBC 2961 (B.C. S.C.), Carrier v. Tate, 2007 BCSC 1591,
2007 CarswellBC 2597 (B.C. S.C.); varied 2009 CarswellBC 1085 (B.C. C.A.). Note:
some of these orders were interim.
63 Vanoni, ibid. at para 16. Primary residence was to be with the mother.
64 Szet, above note 62 at paras. 8 and 11. Primary residence was to be with the mother.
between [the parents] should now be minimized to the greatest extent possible so
that they do not continue to inflict harm upon X and Y by their self-indulgent dis-
like for one another”,65 joint custody and joint guardianship were ordered along
with alternating equal access. Davis J. continued on to say that “[h]opefully, with
the passage of time and cooling of emotions, they will begin to see how destructive
their behaviour has been.”66
Bruce J. affirmed the status quo of a joint custody award in Whittington, de-
spite the fact that “the parties have not learned to communicate with each other in a
civil manner post separation and that because of this problem they are unable to
resolve many issues involving the children in a timely fashion.”67 Similarly, joint
custody and joint guardianship were ordered in Carrier, despite a history of lies,
allegations of sexual abuse of the children that were found to be fabricated, and
anger and abuse between the parents within the hearing of the children.68 In Ny-
gren, Bruce J. awarded joint custody and joint guardianship by consent and ordered
alternating weekly access (shared time) to each parent, during which time they
would have sole decision-making responsibility for health, education and general
welfare. This latter part of the order was designed to deal with the fact that the
parents had “difficulty communicating in a civil manner and find it is almost im-
possible to reach a consensus regarding matters affecting the children”.69 Yet joint
decisions were required for any change in the children’s religion, school, residence,
or health professional, any activities extending beyond the initiating parent’s
weekly access time, and any monetary contribution sought from the other parent.
In two cases, joint custody was used by the court as a device to educate or
control one or both parents. In Z. (E.), joint custody and joint guardianship seemed
to be awarded because the acrimony and negative attitudes dictated against sole
custody to either party. Slade J. appeared to think that joint custody, along with
alternate week residency, would encourage co-parenting.70 In V. (P.), L. Russell J.
awarded joint custody and joint guardianship in order not to improve relations be-
tween the parties but to ensure a balancing effect of having contact with two par-
ents with different temperaments and to inhibit the mother’s efforts to undermine
the father’s relationship with the daughter.71 In this case, the father’s verbal and
physical violence against the mother was found to be irrelevant to his ability to
parent a daughter even though he “does have a temper, does display more anger
than he admits to and does at times make physical contact with [the daughter].72
This case involved significant conflict but the court decided that the parties were
65 D. (C.), above note 62 at para. 35. Primary decision-making was to be with the father.
66 D. (C.), ibid. at para. 35.
67 Whittington, above note 62 at para. 25.
68 Carrier, above note 62.
69 Nygren, above note 62 at para. 14. This award was not called “parallel parenting”,
although it resembled this type of arrangement. See Philip Epstein and Lene Madsen,
“Joint Custody with a Vengeance: The Emergence of Parallel Parenting Orders” (2004)
22 Canadian Family Law Quarterly 1–36.
70 Z. (E.), above note 62 at paras. 44 and 45.
71 V. (P.), above note 62 at para. 101.
72 V. (P.), ibid. at para. 22.
“capable of civil communications at times”.73 The mother was awarded primary

residence, so long as she did not relocate and the father had access of 3 days a
week. If she moved, primary residence was to shift to the father.
Some of these cases indicate significant conflict going beyond communication
difficulties, including conflict that must have had some impact on the children and
that did not hold out much promise of alleviation in the future. Yet joint custody
was awarded anyway, sometimes as a (possibly heavy handed or, at the least,
overly optimistic) tool to direct parental behaviour or choices, something that the
Ontario Court of Appeal warned against in Kaplanis.74
More so than in 2000, in the above cases involving communication or cooper-
ation difficulties, judges sometimes adopted measures to mitigate any adverse ef-
fect of the inability of the parents to communicate in a joint custody regime. These
arrangements ranged from:
(i) requiring the involvement of a third party;75
(ii) requiring the parents to undergo additional counselling or parenting
programs;76
(iii) specifying which decisions needed the joint approval of parents;77
(iv) in five cases, designating a “primary parent” in terms of residence;78
and
(v) in four cases, designating one parent as the final decision-making au-
thority in the case of an impasse (sometimes using the Joyce model).79
In another three cases in 2007, “equal” time with the children was considered
in circumstances that did not reveal easy cooperation. In R. (P.T.),80 the two chil-
dren alternated frequently between each parent. The Supreme Court found no rea-
son to vary this arrangement on the request of the mother, who argued that the
frequent change-over gave the opportunity for “unpleasant behaviour on the part of
the father”.81 The father alleged abusive behaviour by the mother towards one child
in particular, yet wanted the schedule to continue. Johnston J. suggested that the
“friction” between the parents, rather than the custody schedule, was contributing
to the need for the children to have counselling, apparently overlooking the possi-
bility that the frequent changeovers gave the opportunity for the children to witness
conflict. A week on/week off arrangement for a child between parents living in
73 V. (P.), ibid. at para. 97.

74 Kaplanis, above note 19 at para. 14.
75 For instance V. (P.), above note 62, ordered the assistance of the Registrar to make
schedules in the event of conflict; Carrier, above note 62, required the presence of the
father’s mother or sister for at least part of each access visit to allow the father and
children to get reacquainted in the presence of familiar persons.
76 Szet, Z. (E.), Nygren, V. (P.), above note 62.
77 Nygren, above note 62.
78 Bernier, Vanoni, Szet, Kelpin, V. (P.), above note 62.
79 D. (C.), Vargas, Whittington, P. (H.D.), above note 62.
80 R. (P.T.) v. H. (M.P.), 2007 BCSC 56, 2007 CarswellBC 53 (B.C. S.C.).
81 R. (P.T.), ibid. at para. 9.
Squamish and North Vancouver was retained (with an ease in period) in W. (S.),
despite the fact that the mother had interrupted this regime for four months to go
into a residential treatment program for an addiction.82 The mother had accepted
responsibility for her behaviour and the father had made some unilateral decisions
out of frustration and without consideration for the impact on the child. In short
neither parent was found to be perfect, but both were found to be well-motivated
and to provide quality care for the child.
Interestingly, in B. (T.E.),83 the Provincial Court refused an application by the
father to vary an agreed joint custody and guardianship arrangement that did not
specify primary residence or decision-making to a 50-50 shared time arrangement,
because he already had “equal legal rights” and neither parent was intended to be a
senior or junior parent. Both parents were found to love the child very much, to live
close together, and to have different and complementary strengths to offer the
child. The child expressed a wish not to commit to the 50-50 arrangement and the
evidence was that he spent slightly more time with his mother. As a result, the court
order for the status quo of joint custody actually held more flexibility in it than a
50-50 shared time order would have. In this case, then, a joint custody award was
used to defeat the rigidity of an equal time arrangement.
Turning to cases without the difficulties of the above fact scenarios, positive
evidence of ability to cooperate was a factor in some awards in favour of joint
custody in 2007, but rarely the only positive factor. For instance, in three joint
custody awards (all of which also involved relocation applications), the parents
were found to be able to cooperate, despite some difficulties, but other positive
factors existed as well. In M (K.M.), it was also found that both parents had the
capacity to provide for the day-to-day material and emotional needs of the child.84
In S. (M.), both parents were found to be active in the child’s life and the child’s
close bonds with both parents justified joint custody.85 In Chernen, despite a two-
year relocation by the mother and child, there was deemed to be no need to change
the joint custody arrangement because the parents “managed to cooperate reasona-
bly and work together for the best interests of their children”,86 and the father had
been active in the children’s lives since separation.
Judges sometimes awarded joint custody when they were unable to determine
which parent should be designated as the primary parent based on the evidence
presented. That is, joint custody is effectively awarded as a result of the inability of
a judge to decide between the parents. In Bennett,87 when the parents’ common law
relationship ended in Nelson, B.C., the father, who had been principal homemaker,
applied for custody; the mother, who provided the family’s main financial support,
counter-applied for custody and to relocate with the three children to Québec, for
82 W. (S.) v. F. (K.), 2007 BCPC 89, 2007 CarswellBC 706 (B.C. Prov. Ct.).
83 B. (T.E.) v. S. (R.D.I.), 2007 BCPC 56, 2007 CarswellBC 531 (B.C. Prov. Ct.).
84 M. (K.M.) v. F. (A.M.), 2007 BCSC 1312, 2007 CarswellBC 2004 (B.C. S.C.). The
primary caregiver mother was denied permission to relocate in this case.
85 S. (M.) v. W. (G.), 2007 BCPC 440, 2007 CarswellBC 3252 (B.C. Prov. Ct.). The pri-
mary caregiver mother was given permission to relocate.
86 Chernen v. Savenye, 2007 BCSC 709, 2007 CarswellBC 1122 (B.C. S.C.).
87 Bennett v. Larivière, 2007 BCSC 1320, 2007 CarswellBC 1998 (B.C. S.C.).
better employment opportunities. The Supreme Court awarded joint custody and
prohibited the mother from taking the children to Québec (her province of origin
where she had family ties), because no evidence was provided as to the better op-
portunities. The mother’s desire to raise her children in Québec must not come
before her duty to maximize contact with the father. McEwan J. suggested that the
parties had enough good will to solve their custody issues through mediation, or a
judicial settlement conference. No primary parent was designated.
Overall in 2007, the inability of parents to cooperate or communicate did not
operate as a factor that prompted judges per se to refuse to award joint custody.
However, whether or not parents were found to be able to cooperate or communi-
cate might influence a judge to design an award that gave parents somewhat differ-
entiated, hierarchical roles by designating one as the primary parent. About 81 per-
cent of the joint custody awards (30) were modified by a designation of one parent
as the primary residence parent, in 25 cases a mother. The father was designated
the primary parent or allowed to provide the primary residence in five of these
cases, a much less even gender split than in 2000. In a minority of cases (11, in-
cluding some of the primary residence cases), one parent was made the primary or
final decision-maker, several using the Joyce model of guardianship. Judges
seemed, then, to be much more willing to erode shared time with children than they
were to erode joint or shared decision-making.
This device of awarding joint custody but making one parent the primary resi-
dence parent can be seen as a falsely equal approach: parents are awarded “equal”
custody, particularly in relation to decision-making, but one parent, more often the
mother in 2007, has more responsibility for childcare. In addition, joint custody
seemed to be awarded as a practical mechanism to make both parents feel involved
in responsibility for children and to try to push parents towards better behaviour.
Yet one parent usually ended up with more responsibility. In a minority of joint
custody cases, one parent (not always the primary residence parent) also had the
ultimate decision-making power in case of conflict.
(b) Sole Custody

As we have seen, joint custody was awarded even in the face of some signifi-
cant difficulties in many of the cases in both 2000 and 2007. In this section, the
question is what circumstances can persuade a judge, in this shared parenting cli-
mate, to award sole custody? As well, when will sole custody be modified by a
joint guardianship order? In a significant minority of the sole custody decisions,
joint guardianship was awarded, requiring some cooperation in relation to decision-
making. Remarkably, a joint guardianship order might be made even if joint cus-
tody had been judged unworkable.
(i) Sole custody in 2000

Sole custody was awarded in just over half (34) of the 66 cases in which joint
custody was at issue in 2000. Just short of half of these sole custody awards were
made because the level of animosity between parents or the absence of their ability
to communicate was regarded as rendering joint custody inappropriate or not work-
able.88 Twice as many awards went to mothers as to fathers. Although some facts
related primarily to the inability of parents to communicate or some degree of con-
flict, other cases revealed conduct or problems that were far more serious. Yet joint
guardianship was awarded in some of these situations, as we see below.
The following cases illustrate some notable reasons for sole custody awards to
mothers. In Hidlebaugh, the parents held a high level of animosity towards each
other and had difficulty cooperating, with the father casting all blame on the
mother.89 Joint counselling sessions were stopped by the psychologist because they
were unworkable, and the conflict was affecting the children. A mutual restraining
order was in place in Sakve, and a diary of children’s activities ordered by court
ended up being used to deliver criticism between parents.90 Their relationship was
termed a “war”91 and there were concerns about the impact on the children. The
father insisted the mother was unfit. In Cole, there had been deliberate attempts to
alienate the children from other parent; in fact, the father had told the children that
they should kill the mother while she was asleep.92 The children were in significant
distress and the father had psychological issues that led to unreasonable anger and
hostility. Bitterness and resentment made joint decision-making impossible in
Driver,93 with the father trying to prevent the mother from accessing the oldest
child. In that case, sole custody over the two younger children was granted to the
mother and joint guardianship was awarded of all children. The father in Burger
was found to be an alcoholic and allowed the children to drink. He also associated
with drug dealers and prostitutes while the children were present.94 In T. (T.), the
88 Burger v. Reykdal, 2000 BCSC 270, 2000 CarswellBC 330 (B.C. S.C.); additional rea-
sons at 2000 CarswellBC 467 (B.C. S.C.), Gallagher v. Gallagher, 2000 BCSC 418,
2000 CarswellBC 503 (B.C. S.C.), Fayant v. Himmelreich, 2000 BCSC 352, 2000 Car-
swellBC 412 (B.C. S.C.), Hildebrandt v. Hildebrandt, 2000 BCSC 336, 2000 Car-
swellBC 486 (B.C. Master), Stuart v. Stuart, 2000 BCSC 412, 2000 CarswellBC 510
(B.C. S.C. [In Chambers]), Langlois v. Langlois, 2000 BCSC 511, 2000 CarswellBC
637 (B.C. S.C.), T. (T.) v. S. (W.Y.), 2000 BCPC 70 (B.C. Prov. Ct.), Pearse v. Pearse,
2000 BCSC 715, 2000 CarswellBC 990 (B.C. S.C.), Sakaluk v. Sakaluk, 2000 BCSC
713, 2000 CarswellBC 1138 (B.C. S.C.); additional reasons at 2000 CarswellBC 1639
(B.C. S.C.), Hidlebaugh v. Hidlebaugh, 2000 BCSC 799, 2000 CarswellBC 1073 (B.C.
S.C.), Sakve v. Sakve, 2000 BCSC 822, 2000 CarswellBC 1164 (B.C. Master), V. (L.)
v. B. (E.), 2000 BCPC 62, 2000 CarswellBC 3281 (B.C. Prov. Ct.); additional reasons
at 2000 CarswellBC 3050 (B.C. Prov. Ct.), La Flam v. Crete, 2000 BCSC 928, 2000
CarswellBC 1379 (B.C. S.C.), Cole v. Cole, 2000 BCSC 1044, 2000 CarswellBC 1468
(B.C. S.C.), Driver v. Driver, 2000 BCSC 1182, 2000 CarswellBC 1610 (B.C. S.C.),
Midgley v. Midgley, 2000 BCSC 1242, 2000 CarswellBC 1716 (B.C. S.C.); varied
2001 CarswellBC 2099 (B.C. C.A.), Par v. Par, 2000 BCSC 1641, 2000 CarswellBC
2326 (B.C. S.C.), Lien v. Lorenz, 2000 BCSC 1527, 2000 CarswellBC 2186 (B.C.
S.C.).
89 Hidlebaugh, ibid.
90 Sakve, above note 88. This case shows up again in the 2007 pool.
91 Sakve, ibid. at para. 19.
92 Cole, above note 88.
93 Driver, above, note 88.
94 Burger, above note 88.
parents were unable to communicate, and assault charges were laid against the fa-
ther for an incident witnessed by the child; mother and daughter had gone to a
shelter. The Court found that the alleged assault was probable and held that a joint
custody order would increase conflict, holding no benefit to the child. A joint re-
straining order was made.95
Both parents were found to be loving to their son in Langlois, but the father
(who was a stunt man) had had a serious head injury at work in 1993 and resultant
hostility and anger management issues made joint custody unwise.96 The Court or-
dered interim sole custody to the mother and anger management courses and coun-
selling for the father. Somewhat surprisingly, Justice Kirkpatrick encouraged him
to try for joint custody again after completion, although it was thought to be un-
likely that he could interact politely with the mother. Their relationship had signifi-
cantly deteriorated after separation; at one point the father came into house with a
can of gasoline and threatened to burn the house down. He refused all communica-
tions by the mother’s lawyer and rejected all attempts at a workable relationship,
there were fights in front of child, and a restraining order was granted; yet the fa-
ther was offered another chance at joint custody in the future.
Other types of difficulties, for example using child custody claims to diminish
or defeat child support obligations, provided the rationale for sole custody orders to
mothers. In Fayant, the father argued that he had the child 40% of the time and so
should not pay child support under the Child Support Guidelines.97 He had a his-
tory of avoiding his payments. The court found that section 9 of the Guidelines was
not meant to be used for the purposes of avoiding child support obligations.
McEwan J. said: “It is difficult to see how such cooperation will ever come about if
the principle that the child should have as much contact as possible with each par-
ent [under the Divorce Act] continues to run up against the plaintiff’s belief that
child support should not be paid if he has the child 40% of the time.”98 Overall, it
was found that the parties did not get along well enough to order joint custody. In
Sakaluk, child support was in arrears, and neither joint custody nor joint guardian-
ship were awarded to the father because “such an order would have the potential to
be used by the petitioner to harass, disparage and demoralize the respondent”.99
In some cases, sole custody was awarded not due to animosity between par-
ents or the absence of their ability to communicate, but rather when a judge deter-
mined that the best interests of the child justified custody in a parent who was
shown to be the “better” parent or have stronger parenting skills.100 The facts in
95 T. (T.), above note 88.

96 Langlois, above, note 88.
97 Fayant, above note 88; Federal Child Support Guidelines, SOR/97-175, amended May
1st, 2006, s. 9.
98 Fayant, ibid. at para. 19.
99 Sakaluk, above note 88, at para. 33.
100 British Columbia Birth Registration No. 99-00733, Re, 2000 BCCA 109, 2000 Car-
swellBC 256 (B.C. C.A.); leave to appeal refused 2000 CarswellBC 904, 2000 Car-
swellBC 905 (S.C.C.), L.M.B. v. E.D.B., 2000 BCJ 238, La Flam mentioned above
under communication difficulties, above note 88, McKenzie v. Konkin, 2000 BCSC
701, 2000 CarswellBC 979 (B.C. S.C.), C. (A.J.) v. C. (R.), 2000 BCSC 759, 2000
these cases usually revealed serious problems resting in one parent. For instance, in
McKenzie, the third party applicant (a woman who had lived with the father, the
mother having committed suicide) was found to have better parenting skills,
whereas the father had great difficulty in maintaining lasting relationships with the
women in his life and a history of lack of exercising access with his other chil-
dren.101 He was also harsh with the children, who were at risk of emotional and
physical harm. Joint guardianship on the Joyce model was nevertheless awarded. In
C. (A.J.),102 sole custody went to the mother because the father was inappropriate
with the children, had a prior sexual assault charge and was abusive to mother and
alienated her from children. He had a controlling personality and the mother and
children were afraid of him. In Lerner, the father was easily frustrated and some-
times inappropriate to children, causing distress, so sole custody was awarded to
the mother.103 In W. (C.), the mother was hospitalized after she entered a down-
ward spiral after a bad breakup and started drinking and using drugs. Her increas-
ingly irrational behaviour endangered the children, and sole custody was awarded
to the father.104 Similarly, in Boyko, the father provided a more structured environ-
ment, a stable routine and set limits, whereas the mother moved and entered into
new relationships relatively frequently.105
Other cases presented less compelling arguments in favour of one parent over
the other but sole custody was nevertheless awarded to one parent. In Brighton, the
father was awarded sole custody because he was in a somewhat more stable situa-
tion overall than the mother, was more likely to remain in one, and was judged
more able and likely to provide a stable environment for the child. Both parents had
re-partnered and established new residences in different locations, but the judge
assessed the plan to change the child’s residence each year to be contrary to the
child’s best interests.106 In a case involving a child with Down’s Syndrome, the
mother wished to move to Switzerland and the Court was not persuaded that the
disruption in the child’s life was outweighed by the benefits of moving and the
mother’s stable plan for his future.107 Although the primary caregiver father had
not facilitated access in the past, he was awarded sole custody and guardianship. A
few other cases were decided based on mainly procedural concerns, specifically,
CarswellBC 1039 (B.C. S.C.); additional reasons at 2000 CarswellBC 1324 (B.C.
S.C.), Brighton v. Brighton, 2000 BCSC 1004, 2000 CarswellBC 1388 (B.C. S.C.),
Dougherty v. Humbel, 2000 BCSC 1673, 2000 CarswellBC 2327 (B.C. S.C.),
Todosichuk v. Todosichuk, 2000 BCSC 1810, 2000 CarswellBC 2643 (B.C. S.C.),
Boyko v. Purdue, 2000 BCSC 1238, 2000 CarswellBC 1824 (B.C. S.C.); additional
reasons at 2000 CarswellBC 2660 (B.C. S.C.); additional reasons at 2000 CarswellBC
2659 (B.C. S.C.), Lerner v. Lerner, 2000 BCSC 1418, 2000 CarswellBC 1916 (B.C.
S.C.), W. (C.) v. W. (S.), 2000 BCPC 181, 2000 CarswellBC 3206 (B.C. Prov. Ct.).
101 McKenzie, ibid.
102 C. (A.J.), above note 100.
103 Lerner, above note 100.
104 W. (C.), above note 100.
105 Boyko, above note 100.
106 Brighton, above note 100.
107 Dougherty, above note 100.
that no valid reason was adduced to vary the existing sole custody regime.108 Two
others appeared to have relied on retention of the status quo. Bishop involved an
interim application, and explicitly referred to the “presumption” that the status quo
(with the mother) should be maintained pending trial.109 Lambert used the fact that
the youngest child had always resided with his mother as the only basis to award
sole custody to the mother.110
In 2000, almost half (16, or 47%) of the sole custody decisions included an
award of joint guardianship that diminished the decision-making powers of the cus-
todial parent, although a number of these used the Joyce model or gave primary
decision-making to one parent.111 In several cases, joint guardianship was ordered
in the face of difficulties that had dictated against a joint custody order. In V. (L.), a
restraining order was in place due to the father’s abuse of the mother, there was
irrational behaviour, and the police were called in at fights; nevertheless joint
guardianship on the Joyce model was ordered.112 Joint custody was not requested
by any party in La Flam, and so was not considered, but joint guardianship was
awarded along with sole custody to the father, who was found to be more stable.113
In Stuart, there were communication problems. An order was made that the mother
stop faxing the father at work, and that phone access should be allowed between the
children and the mother when they were in the father’s care. Nevertheless, the max-
imum contact principle was stressed and joint guardianship awarded on the Joyce
model.114 A mother had been diagnosed with breast cancer in Pearse. The parental
relationship broke down, the father was depressed and he considered the mother’s
cancer to be “‘god’s punishment’ for her ‘misdeeds’”.115 He had also misrepre-
sented the situation in prior court proceedings. Joint guardianship was still
awarded, as it was in Par, where the father was emotionally volatile, and threatened
to take child to Turkey.116 The father was found not to be creditable, the child was
doing well in sole custody of the mother, and there was no benefit to altering the
108 McIndoe v. O’Connell, 2000 BCSC 726, 2000 CarswellBC 1031 (B.C. S.C.), McCann
v. McCann, 2000 BCSC 1174, 2000 CarswellBC 1609 (B.C. S.C. [In Chambers]), Col-
lins, above note 51, Murphy v. Murphy, 2000 BCSC 1476, 2000 CarswellBC 1974
(B.C. S.C.).
109 Bishop v. Charvet, 2000 BCSC 1059, 2000 CarswellBC 1462 (B.C. S.C.).
110 Lambert, above note 58 at para. 19.
111 La Flam, Hildebrandt, Stuart, Pearse, Driver, Par, Lien V. (L.), above note 88,
O’Connell, McCann, above note 108, Bishop, above note 109, L. (A.) v. K. (D.), 2000
BCCA 633, 2000 CarswellBC 2283 (B.C. C.A.), Boyko, Lerner, W. (C.), McKenzie,
above note 100. In addition, in three cases where a custody order was not made, joint
guardianship was awarded along with an assignment of primary residence to one
parent: Hamilton v. Hamilton, 2000 BCSC 937, 2000 CarswellBC 1313 (B.C. Master),
Gledhill v. Green, 2000 BCSC 440, 2000 CarswellBC 605 (B.C. Master), Kruger v.
Kruger, 2000 BCSC 975, 2000 CarswellBC 1364 (B.C. Master).
112 V. (L.), above note 88.
113 La Flam, above note 88.
114 Stuart, above, note 88.
115 Pearse, above note 88 at para. 18.
116 Par, above note 88.
situation. The court in Lien awarded interim sole custody with generous access to
mother to facilitate her move to Nebraska to pursue three years of education.117
The Court hoped that with time the animosity and relationship issues would abate
to the point that a joint custody order would be workable. Joint guardianship on the
Joyce model was ordered.
Joint guardianship seemed to be used in these cases to impose a sense of in-
vestment and responsibility on a non-custodial parent, and to urge the custodial
parent to involve them. As mentioned, joint guardianship also preserves the ability
of a non-custodial parent to exercise authority when the child is with them and
guardianship will pass automatically to the non-custodial joint guardian should the
other parent die.
Overall, in 2000, sole custody was mostly ordered when serious issues such as
abuse of one parent by the other were in play or the fitness of one parent was in
question. That said, a joint guardianship award at least somewhat diminished the
decision-making power of the custodial parent in about one half of the cases.
(ii) Sole custody in 2007

In 2007, B.C. judges awarded sole custody in less than half (27 or 42%) of the
64 cases I reviewed, with the mother named as the custodial parent in about 55% of
the sole custody cases, the father in 37%, and grandparents in two cases. Joint
guardianship was awarded in 37% of the sole custody cases, including in the face
of communication or other difficulties. In a majority (21) of the sole custody
awards, the reasons for not awarding joint custody related at least in part to the
inability of the parents to cooperate, generally due to “acrimonious” or “conflict-
laden” relationships.118
For example, in Sakve, the parents separated a few months after the birth of
their son in 1999, and had been “completely at odds” ever since.119 This case also
appeared in the 2000 sample, at which time interim sole custody was granted to the
mother. The father had exercised access. Bernard J. noted that there had been a
lengthy history of open conflict that had affected the child, and numerous reports
had been made to the Ministry of Children and Families as well as the police, alleg-
ing misconduct on both sides. The expert assessment confirmed that the animosity
between the parents was generating signs of stress in the child and, that he was
primarily attached to the mother. The expert recommended sole custody and guard-
ianship to the mother, with whom the child had always lived. The mother was more
117 Lien, above note 88.

118 D. (N.) v. P. (T.), 2007 BCPC 288, 2007 CarswellBC 2073 (B.C. Prov. Ct.), M. (E.D.)
v. M. (J.C.D.), 2007 BCSC 1781, 2007 CarswellBC 2975 (B.C. S.C.), G. (C.J.) v. G.
(R.C.), 2007 BCSC 161, 2007 CarswellBC 215 (B.C. S.C.), D. (J.D.) v. S. (M.D.), 2007
BCPC 343, 2007 CarswellBC 2672 (B.C. Prov. Ct.), Enns v. Enns, 2007 BCSC 500,
2007 CarswellBC 730 (B.C. Master), Jensen v. Mains, 2007 BCSC 1057, 2007 Car-
swellBC 2225 (B.C. S.C.), Hindson v. Hindson, 2007 BCSC 1098, 2007 CarswellBC
1682 (B.C. S.C.), Sakve v. Sakve, 2007 BCSC 1132, 2007 CarswellBC 1743 (B.C.
S.C.), R. (D.C.) v. R. (T.M.), 2007 BCSC 1127, 2007 CarswellBC 1766 (B.C. S.C.), B.
(J.) v. D. (T.), 2007 BCSC 1194, 2007 CarswellBC 1813 (B.C. Master).
119 Sakve, ibid. at para 1.
able to behave constructively towards the father than he was to her. Joint guardian-
ship by consent was, however, awarded alongside sole custody to the mother. An-
other case awarding sole custody to the father revealed numerous unfounded alle-
gations by the mother of physical and sexual abuse of the children by the father and
his relatives, as well as parental alienation by the mother.120
In other cases, specific problems accounted for the inability of the parents to
communicate, and the awarding of sole custody rather than joint custody. These
cases included serious issues such as:
(i) the choice of one parent to ignore a child or not to take their parenting
responsibilities more seriously;121
(ii) ostracism by a parent’s religious community;122
(iii) physical or emotional abuse of one parent (usually the mother) by the
other parent, including assault;123
(iv) personal issues such as a parent dealing with substance abuse or
alcoholism.124
Six other sole custody awards in 2007 dealt with serious issues other than
inability to cooperate or communicate, including inability to care for children.125 In
120 G. (C.J.), above note 118.

121 In Chan v. Tam, 2007 BCSC 1884, 2007 CarswellBC 3293 (B.C. S.C. [In Chambers]);
affirmed 2008 CarswellBC 2557 (B.C. C.A.), the father had not exercised access to his
son; In Smith v. Dermann, 2007 BCSC 169, 2007 CarswellBC 264 (B.C. S.C.), the
mother, who had seven children with different fathers and was found to be “impulsive
and irresponsible” (at para. 32), had moved to Alberta and left the child with the father.
In Lessard v. Mahoney, 2007 BCSC 562, 2007 CarswellBC 880 (B.C. Master), the
father had abruptly left Vancouver without notifying the mother.
122 Blackmore v. Blackmore, 2007 BCSC 1735, 2007 CarswellBC 2893 (B.C. S.C.). This
case related to the polygamist community in Bountiful, B.C. The mother had left the
community with the children, while the father remained in Bountiful.
123 In M. (K.A.) v. W. (D.L.J.), 2007 BCPC 91, 2007 CarswellBC 756 (B.C. Prov. Ct.), the
father had made four unfounded complaints against the mother to the Ministry and
there were restraining orders against him. In Kortlever v. Kortlever, 2007 BCSC 487,
2007 CarswellBC 767 (B.C. S.C. [In Chambers]), the father was charged with assault
against the mother and was on a peace bond. H. (K.K.) v. H. (S.S.), 2007 BCPC 230,
2007 CarswellBC 1645 (B.C. Prov. Ct.), where the father and his brother were charged
with assault. In H. (E.R.) v. H. (B.W.), 2007 BCSC 1078, 2007 CarswellBC 1807 (B.C.
S.C.); affirmed 2009 CarswellBC 3395 (B.C. C.A.), the father was unable to control his
anger and had a need to attempt to control the mother, as well as having abused her
physically and emotionally in the past. Y. (S.J.) v. Y. (C.A.), 2007 BCSC 1108, 2007
CarswellBC 1747 (B.C. S.C.), where the parties had a history of violent interaction.
124 The interim order in Sandhu v. Sandhu, 2007 BCSC 666, 2007 CarswellBC 1008 (B.C.
S.C.) was based in part on evidence that the father had problems with alcohol con-
sumption that had negatively affected the family. In Gallant v. Gallant, 2007 BCSC
851, 2007 CarswellBC 1455 (B.C. S.C. [In Chambers]), the father was loving and ca-
pable when sober, but was found to be an alcoholic. In Hindson, above note 118, the
mother’s alcoholism had destroyed her marriage.
125 R. (I.) v. R. (L.), 2007 BCPC 387, 2007 CarswellBC 3082 (B.C. Prov. Ct.), Hussein v.
Ibrahim, 2007 BCSC 1725, 2007 CarswellBC 2874 (B.C. S.C.), F. (F.) v. N. (C.), 2007
two of these cases, the maternal grandmother or grandparents were awarded sole
custody and guardianship in cases dealing with substance abuse or sexual abuse by
parents.126 In F. (F.),127 the children were previously left to the primary care of
their maternal grandmother, with the consent of their parents, because neither par-
ent was then able care for them. Subsequently, upon the father’s application, the
court awarded father sole custody in part because he proved he had the necessary
capabilities and financial standing to be a capable parent. In British Columbia
(Child Family and Community Service) v. T. (P.P.K.), the court awarded the mother
sole custody of the child on the basis of the father’s admission that he could not
take care of the child due to his substance abuse problem and upon reliance on the
report of the psychiatrist that the mother had the “necessary skills, intelligence,
demeanor and capacity to learn and to become a good mother”.128
Two other sole custody cases dealt with the impact of geographical distance
on custody arrangements.129 For example, in Turner, the court made its interim
award of sole custody in favour of the father effective only if the mother actually
decided to relocate to the United States.130 In the meantime, the order for joint
custody and guardianship remained in effect. The court found that the mother’s
decision to relocate with the children was not in their best interests at the time,
because of the uncertainty of her relocation plans and lack of evidence regarding
her new partner. In addition, should the award of sole custody in favour of the
father become effective, the court required a review of the order after one year to
determine whether it remained in the children’s best interests.
Joint guardianship modified a sole custody order in about 37% of the sole
custody cases reviewed, about half with a primary decision-maker. As in 2000,
joint guardianship sometimes was awarded even when the parties had significant
difficulties in communicating. The court in D. (J.D.) awarded joint guardianship in
addition to sole custody to the father, in spite of the fact that “at the present time
the parties are unable to communicate effectively”.131 A restraining order was also
made against the mother, who had mental health issues and had assaulted the fa-
ther. The court found “from the evidence presented in this matter that in the long
term the parties should be in a position to communicate and consult with each other
concerning the broader best interests of the Children”.132 This case provides an
example of joint guardianship being awarded in a spirit of optimism that may or
BCSC 864, 2007 CarswellBC 1386 (B.C. S.C.), Turner v. Turner, 2007 BCSC 188,
2007 CarswellBC 1160 (B.C. S.C.), British Columbia (Director of Family & Child
Services) v. S. (D.A.), 2007 CarswellBC 3387, [2007] B.C.J. No. 2949 (B.C. Prov. Ct.),
British Columbia (Director of Child, Family & Community Service) v. T. (P.P.K.),
2007 BCPC 382, 2007 CarswellBC 2941 (B.C. Prov. Ct.).
126 R. (I.), British Columbia (Director of Family & Child Services) v. S. (D.A.), ibid.
127 F. (F.), above note 125.
128 British Columbia (Director of Child, Family & Community Service) v. T. (P.P.K.),
above note 125.
129 Turner, Hussein, above note 125.
130 Turner, ibid.
131 D. (J.D.), above note 118 at para. 97.
132 D. (J.D.), ibid. at para. 98.
may not be warranted.

Joint guardianship appears to be awarded in some sole custody cases as a de-
fault position, even in cases involving conflict between the parents. In Kortlever,133
the court awarded both parents joint guardianship, but denied joint custody due to
conflict between the parties and the lack of communication between them for over
a year following a restraining order placed upon the father due to the mother’s
allegations that he had assaulted her. The father was to have as much access as the
mother allowed. The court was “unable to find any reason why the father should
not be the guardian of his children,”134 which seemed to imply that joint guardian-
ship was a “default” position that the court could fall back on in the absence of any
evidence to the contrary. This judgement also illustrates the ongoing propensity for
many judges to separate questions of spousal assault from the assessment of the
best interests of the child.
Speaking to the power of joint awards as a normative expectation, in a couple
of cases that resulted in sole custody orders, judges considered whether an order of
joint custody was warranted, even though no claim for joint custody was made. It is
unclear why Groves J. did so in Chan,135 even though the father had not exercised
access at all and, as the judge said, had been irresponsible in relation to his wife
and child since separation. In a different set of circumstances in Hussein,136 but
again where neither parent sought joint custody, the court took it upon itself to
determine whether joint custody was appropriate. The children had been cared for
by the mother since birth and the details about the father’s new relationship in Al-
berta were unclear. Both parents were found to be generally good parents “who had
the best interests of the children at heart”137 but the court did not find joint custody
“to be appropriate while the father was living in Alberta”138 and the children re-
sided in B.C. with their mother.
Some judges demonstrated sensitivity to the stress that joint custody and joint
guardianship orders can generate when imposed on parents with significant differ-
ences. In H. (K.K.),139 the court declined to award joint guardianship because the
parties were not found to have the ability to set aside conflict and work collabora-
tively with each other; the mother’s fear of the father made contact with him diffi-
cult. (She alleged that the father and his brother had assaulted her). The court stated
that “to share guardianship, parents must, at a minimum, be able to set aside any
conflict and work collaboratively towards the best interests of the children”.140 The
daughter was to have supervised access to alleviate her fear of her father, whereas
the son, who was not afraid, was to have unsupervised access. In a rare finding in
his sole custody/sole guardianship award to the mother in Blackmore, Melnick J.
133 Kortlever, above note 123.

134 Kortlever, ibid. at para. 17.
135 Chan, above note 121. Perhaps the judge felt it proper to consider joint custody be-
cause the father had not appeared before the court, nor filed materials.
136 Hussein, above note 125.
137 Hussein, ibid. at para. 25.
138 Hussein, ibid. at para. 29.
139 H. (K.K.), above note 123.
140 H. (K.K.), ibid. at para. 24.
determined that maximum contact with both parents was inconsistent with the best
interests of the children, given the ostracism that the mother and the children would
face by the Fundamentalist Church of Jesus Christ of Latter-day Saints community,
which might well, in turn, have a negative impact on the children.141 In M. (E.D.),
it was found that the children’s lives had become tumultuous and strained over the
four years of their parents’ separation, which had a high degree of animosity that
made communication difficult.142 Although the father sought joint custody and pe-
riods each week when both children resided with him together and individually, the
court found this proposal to be not in their best interest. The relationship between
the parties was so fractious that any form of joint or shared custody, including one
that specified primary residence and access, would expose the children to a contin-
uous power struggle. The decision in Hunter also manifested recognition that the
case (where the father had in the past physically and emotionally abused the mother
and had a need to control her) was not one in which joint custody should be im-
posed in the hope that with the passage of time the parties would learn to communi-
cate and participate in joint decision-making.143
Although these cases illustrate that judges can resist joint custody or guardian-
ship awards when the facts are compelling, the number of cases where joint guardi-
anship was awarded alongside sole custody, in the face of serious problems, is
startling.
4. SUMMARY
This study of custody decisions in which joint custody was at play in the B.C.
trial courts for 2000 and 2007 uncovers some interesting, and sometimes troubling,
trends. Keeping in mind that all of these cases involved disputes that the parents
could not settle without a judge’s assistance, which implies some level of conflict,
the award of joint custody in a majority of cases in 2007 is potentially disturbing.
Moreover, a significant number of joint custody awards were made in both years in
the face of difficulties in communication or a history of conflict or non-coopera-
tion, in some cases quite serious. Sometimes it is difficult to determine why joint
custody was awarded in one case but deemed inappropriate in another. Although
somewhat more serious facts characterized the sole custody cases, joint guardian-
ship might nevertheless be awarded even if judges determined that joint custody
was inappropriate due to conflict, abuse, and so on.
If joint guardianship awards combined with a sole custody award are added to
joint custody awards in both years, well over 50% of orders in both years are for
some form of joint parenting, especially in relation to decision-making. This level
of joint awards seems quite high for litigated cases, given that by definition, the
parents are in conflict and have not been able to cooperate on a negotiated parent-
ing arrangement. As noted, some decisions suggest that joint custody is awarded in
part due to the difficulty in deciding between the parents. Although some judges
141 Blackmore, above note 122 at para 19.

142 M. (E.D.), above note 118.
143 Hunter, above note 123.
have defined joint guardianship in a very similar manner to joint custody,144 it ap-
pears that they are more ready to order joint guardianship in the face of conflict
between the parents than they are to award joint custody. In general, anecdotal re-
ports that joint custody is the starting point in many B.C. court rooms appear to be
supported by the judgements reviewed.
As outlined in Part 2 above, the B.C. Court of Appeal has eschewed the use of
presumptions to guide decision-making on custody, including any notion that diffi-
culty in communication dictates against a joint custody award. Its 1996 decision in
Robinson v. Filyk,145 emphasizing the best interests of the child standard, prompted
judges to move beyond a determination whether parents were or were not able to
communicate or cooperate, and establish whether these circumstances prejudiced
the best interests of the child. Although many trial judges, as well as appellate jus-
tices,146 still take into account the ability to communicate or cooperate, in many
ways, Robinson v. Filyk marked the end of whatever cautious approach to joint
custody may have existed in B.C. Some of the cases I reviewed suggest that joint
custody and/or joint guardianship have been awarded too readily in the face of con-
flicted relationships, and, as well, in circumstances where the children were quite
likely being affected.147 Others indicate excessive optimism that imposing a joint
custody order will eventually result in the diminishing of conflict between parents
or that it will be an effective educational device.148
Despite its emphasis on the best interests of the child, which should be agnos-
tic as to whether joint custody is a better resolution, the Robinson approach effec-
tively promotes joint custody. Why is this so? Because Robinson’s no presumption
approach operates in a normative environment where some form of joint cus-
tody/maximum contact/shared parenting is assumed to be preferable.149 In practice,
then, joint custody is viewed as normally being in the best interests of the child,
even in cases of conflict between parents, which most litigated cases involve. That
is, if joint custody, maximum contact, and involvement of both parents in a child’s
life are equated with the best interests of the child by most lawyers and judges, and
evidence must be provided to indicate that it will not work, joint custody effec-
tively becomes a presumption. This approach goes against the “one size does not fit
all” approach that has been emphasized in various law reform processes in
Canada.150
How does the ability to order joint guardianship in B.C. fit in? Although joint
guardianship and joint custody are separate concepts in theory, and joint guardian-
ship has been awarded by some judges even if joint custody is assessed as unwork-
144 Lennox, above note 10, Anson, above note 7.

145 Robinson v. Filyk, above note 29.
146 Boyd, “No Presumptions”, above note 31.
147 See, for example, Vanoni, above note 62, Szet, above note 62, D. (C.), above note 62.
148 D. (C.), above note 62; Z. (E.), above note 62.
149 Susan B. Boyd, “Backlash and the Construction of Legal Knowledge: The Case of
Child Custody Law” (2001) 20 Windsor Yearbook of Access to Justice 141.
150 For an overview of the last federal law reform discussions, see Helen Rhoades and
Susan B. Boyd, “Reforming Custody Laws: A Comparative Study” (2004) 18 Interna-
tional Journal of Law, Policy and the Family 119.
able, joint guardianship clearly involves some level of joint decision-making. It has
been defined very similarly to joint (legal) custody. Thus the number of joint
guardianship awards in conjunction with sole custody raises concerns similar to
those evoked by joint custody, for example, when it is awarded in the face of con-
flict or abuse.
Despite what appears to be a normative embrace of joint custody and joint
guardianship in B.C., trial judges are sometimes willing to order sole custody or to
limit the joint-ness of an award by using devices such as designating a primary
residential parent. As well, in some cases (but a minority of joint custody cases in
both years), a primary parent is named for the purposes of decision-making. More-
over, judges are certainly capable of making sole custody decisions when required,
although, confusingly, these awards are often modified by a joint guardianship
award. More confusing still, these joint guardianship awards sometimes assign a
primary decision-maker parent. The details of the awards and the “unbundling” of
custody through designations of primary parents reveal some recognition of the
facts of primary caregiving, as well as abuse, in many families. Given the fewer
numbers of designations of one parent as the primary or final decision-maker, how-
ever, it appears that judges do not always appreciate the difficulties of requiring
parents to make joint decisions in the face of high conflict or abuse.
As a result, this study is a study of contradictions. On the one hand, as just
mentioned, it shows that judges often use the tools of custody and guardianship
provided by the current in B.C. family law in quite creative ways. On the other
hand, the cases demonstrate the power that joint custody (and joint guardianship)
has achieved. Joint custody and joint guardianship awards are made even in the
face of quite conflicted relations between parents, something that may cause con-
cern about the consequences for children, based on the social science evidence re-
viewed in Part 2. Some of these cases also raise questions about the failure to rec-
ognize the disproportionate labour that many mothers still contribute in relation to
children.151 Joint awards seem to be granted in some cases in order to acknowledge
that a father loves his children, rather than as an acknowledgement of responsibility
he has taken for the care of the children. This approach values the fact that a parent
“cares about” their child rather than “caring for” a child, in a way that Carol Smart
has identified as a problematically gendered pattern.152
In some cases, joint custody appears to be awarded because the judge had
concerns about both parents or because the judge suspected that if one parent were
awarded sole custody, it would be used to diminish the child’s relationship with the
other parent. As Fraser J. said in Graham, a case where parents who had been sepa-
rated for 20 months had significant difficulties in communicating and cooperating,
“an order for sole custody is not here an acceptable alternative. More so than in
151 See for example, Susan B. Boyd, Child Custody, Law, and Women’s Work (Don Mills:
Oxford University Press, 2003); Pamela Laufer-Ukeles, “Selective Recognition of
Gender Difference in the Law” (2008) 31 Harv. J. Gender and Law 1; Martha Albert-
son Fineman, The Neutered Mother, the Sexual Family and other Twentieth Century
Tragedies (New York: Routledge, 1995).
152 Carol Smart, “The Legal and Moral Ordering of Child Custody” (1991) 18(4) Journal
of Law and Society 485. That said, our study showed that some fathers do take primary
responsibility for childcare, although a minority in our cases.
many cases, these two parents bring different qualities to their parenting; Alexander
needs both of them. If he had sole custody, Mr. Graham, I believe, would employ
one pretext or another gradually to wean Alexander from Mrs. Graham’s aegis.”153
Joint custody and equal time were ordered. These difficult fact scenarios raise the
question of whether it is preferable in these difficult cases to legally oblige parents
to share parenting responsibilities, which may in turn expose the child to ongoing
conflict and also generate stress in one or both parents, or whether it might be bet-
ter to accord one parent the primary responsibilities.
5. LAW REFORM IN BRITISH COLUMBIA

I want to end by considering some insights of this study for the proposed
changes to custody and guardianship law in British Columbia. As mentioned, the
concepts of custody and access would be abolished, with only guardianship (and
parenting time) remaining. Importantly, the concept of guardianship would now en-
compass all aspects of custody and guardianship. The British Columbia White Pa-
per states that in the case of separating parents, each parent should continue to hold,
and be able to exercise, all responsibilities of guardianship in the best interests of
their children.154 The list of parental responsibilities is extensive, including the va-
rious components of custody and guardianship. These include making day-to-day
decisions affecting the child, including having the day-to-day care and control of
the child and supervising the child’s daily activities; deciding the child’s place of
residence and changing it; and making decisions about education, medical treat-
ment, and so on. Without an agreement or court order to the contrary, then, both
parents will be assumed to have day-to-day care and equal decision-making. Effec-
tively, then, joint guardianship — defined in a very expansive manner through the
list of parental responsibilities — would be presumed to exist on separation.
The goal of this proposed change is to encourage parents to continue to co-
operate in raising their children after separation. Parents are free to adjust the pa-
rental responsibilities and to tailor parenting arrangements to their own circum-
stances. However, this ability to alter the presumed joint responsibilities is pre-
mised on the assumption that these parents are able to cooperatively negotiate an
allocation that departs from an equality or sharing principle. If such co-operation is
not possible or appropriate, for example in abuse scenarios that make it very diffi-
cult for a parent to negotiate and/or where children are used as a way to maintain
power, the parent with concerns about ongoing guardianship residing with both
parents must seek a court order.
This proposal marks a major change from the default position provided by the
current British Columbia system described in the Introduction: when parents sepa-
rate, the parent who usually has care and control of the child has guardianship,
unless agreed or ordered otherwise.155 Similar provisions exist for custody: if the
parents live apart, they parent with whom the child usually lives has sole cus-
153 Graham, above note 38, at para 33, Fraser J.

154 White Paper, above note 1 at p. 52-53.
155 Family Relations Act, above note 4, s. 27.
tody.156 These default provisions take account of the fact that for most separating
parents, an asymmetrical division of responsibilities exists in relation to children.
The current system does not prevent parents from agreeing to a more shared scena-
rio — many do — nor, as we have seen in this study, does it prevent court orders
for joint custody and guardianship. As we have also seen, some judges are able to
create quite nuanced orders using the tools of custody and guardianship, as well as
primary residence and primary decision-maker.
Since a majority of cases that I studied awarded joint custody or joint guardi-
anship, one might suggest that an enlarged notion of joint guardianship should be
the correct starting point. However, in most of the cases reviewed, one or both
parents had argued for joint custody at some point. They had to do so because the
starting point under the existing statute is that the parent with whom the child re-
sides has sole custody and guardianship. Any parent wishing to argue for a more
shared arrangement thus has some burden of proof, despite the fact that joint
awards are increasingly normative. The proposed law would take a different start-
ing point — of joint guardianship — regardless of the past history of parenting.
This places a considerable burden of proof on a parent resisting a joint award, espe-
cially given the normative climate in favour of joint arrangements.
By shifting the default, the proposed reforms would likely generate serious
problems for a parent caregiver who is dealing with a manipulative or abusive
spouse, or one who has not demonstrated commitment to a child in the past. For
instance, a mother attempting to leave an abusive relationship will be assumed to
share guardianship with her ex-partner.157 She will have to try to negotiate another
arrangement — for example, about day to day care — with him and if he resists
(which is very likely in a power and control scenario), she will have to apply to
court. Ironically, resorting to court is precisely what the law reforms are trying to
preclude.158 Equally ironically, the proposed new definition of the best interests of
the child test would emphasize factors such as family violence and history of
care.159 Under this excellent redefinition of the best interests test, the greatest pos-
sible protection of the child’s physical, psychological and emotional safety and se-
curity must be ensured. This will likely be beneficial to the woman in the above
scenario, but crucially, only if she is able to marshal the resources and find the
social and legal supports to go to court. This ability is much in question with the
restricted access to legal aid in British Columbia, among other impediments.
The current system of providing a default provision of sole custody/sole
guardianship in scenarios where the child resides primarily with one parent is not
perfect. Moreover, as the cases reviewed in this study have shown, these provisions
do not prevent joint custody or joint guardianship awards in scenarios where abuse
or very high conflict exists. But no default system is perfect, with the question
being which system best prevents abuses. Although the British Columbia White
156 Ibid., s. 34.

157 Although this study showed that women too can be abusive of their male spouses, the
dynamics of abuse in the cases reviewed remains gendered, with more male abuse of
women than the other way around.
158 White Paper, above note 1 at pp. 2–5.
159 Ibid. at p. 48.
Paper makes many wise recommendations, in assuming that joint guardianship

(which is effectively joint custody under the proposal) is the best starting point for
separating parents, it overlooks the extent of situations where serious conflict char-
acterizes the relationship between the parents and it consequently over-estimates
the extent to which cooperation can happen. In so doing, it appears to leave the
cautious approach to joint custody even further behind. Preserving the current start-
ing point, whereby a child is under the guardianship of the parent with whom they
reside, assuming that reasonable parents will agree to a more joint arrangement if it
is workable, and obliging others to negotiate or litigate for a more joint arrange-
ment with the burden of showing this arrangement is in the best interests of the
child — using the new factors that would emphasize safety and security — would
be a far preferable route to ensuring the safety and security of children and their
caregivers.
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2. JOINT CUSTODY TRENDS AND CONCERNS

larly cautious approach to joint custody in the face of communication difficulties,

29 1996 CarswellBC 2664, 84 B.C.A.C. 290 (B.C. C.A.).

3. THE B.C. TRIAL COURTS 2000 AND 2007

33 Robinson, above note 29.

(a) Joint Custody

41 Robinson v. Filyk, above note 29.

(ii) the absence of any objection to a joint custody regime;51

assault and ongoing difficulties in communication and cooperation,59 even though

(ii) Joint Custody in 2007

59 S. (R.), above note 37.

“capable of civil communications at times”.73 The mother was awarded primary

73 V. (P.), ibid. at para. 97.

(b) Sole Custody

(i) Sole custody in 2000

95 T. (T.), above note 88.

(ii) Sole custody in 2007

117 Lien, above note 88.

120 G. (C.J.), above note 118.

may not be warranted.

133 Kortlever, above note 123.

141 Blackmore, above note 122 at para 19.

144 Lennox, above note 10, Anson, above note 7.

5. LAW REFORM IN BRITISH COLUMBIA

153 Graham, above note 38, at para 33, Fraser J.

156 Ibid., s. 34.

Paper makes many wise recommendations, in assuming that joint guardianship

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