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Issues around Parental Communication Can Be a “Double-Edged Sword”

by Daniel Gloade on January 22, 2016

This is a case before Justice D. Edwards.  It is called Saldanha v. Saldanha, 2016 ONSC 252 and it can be read here.

The main issue of this case was custody of the children.  The children primarily resided with the Mother after the separation.  The Father tape recorded a phone conversation with the Mother in which he asked to see the children.  The Mother was unaware that the conversation was being recorded.

Both parties cited the same telephone conversation as evidence of the other party’s unreasonableness.  Justice Edwards denied that the tape-recorded evidence swayed his decision but he did decide that the Mother was unreasonable during that exchange.

Justice D. Edwards also reviewed text messages between the parties.  Justice Edwards held that the Mother had attempted to have unilateral control over all access arrangements.  Justice Edwards described it as “My way or the highway”.  He did acknowledge, however, that while the Mother could be difficult the parties did resolve their disputes eventually.

The Mother asked for sole custody of the children because:

  • The Father did not have any concerns about the Mother’s parenting;
  • Up until then the children resided primarily with her; and
  • There was a great deal of hostility between the parties.

Justice Edwards acknowledged that there is case law which states that joint custody is inappropriate if the parties are unable to communicate.  He also said that if the Mother was granted sole custody she would make the Father’s access to the children difficult or even impossible.

Justice Edwards ordered parallel parenting.  This means that the parties are to make good faith attempts to resolve disputes arising between them. In the event of an irreconcilable dispute, however, one party would have final say.

Finally, Justice Edwards changed the access schedule so that the Father would see the children for 40% of the time.  This is significant because:

  • It was a change in the children’s status quo, which is generally discouraged under family law statutes; and
  • It significantly reduces the amount of child support the Mother would receive.

Often, the custodial parent wants sole custody of the children and the access parent wants joint custody.  The custodial parent argues that there is hostility between the parties.  The access parent argues, however, that he or she acts calmly and reasonably and that the custodial parent is being immature.  Such behaviour should not be rewarded with sole custody.  The access parent’s argument is often unsuccessful, however.  It was successful in this case, however.

Also, the Father taped recorded a conversation without the mother’s knowledge.  Obtaining clandestine evidence about the other parent’s behaviour or ability to parent is often frowned upon. The fear is that this will increase distrust and antagonism between the parties.

Justice Edward was willing to hear the conversation because both parties had conflicting stories about the same conversation.  The recording resolved the conflict.  In general, a party would be wise to make clandestine recordings to show the other party’s true nature, but only use these recordings in court to rebut the wrongful evidence (if any) of the other side.

Justice Edwards was clearly impressed with the Father’s evidence.  The fact that he increased the Father’s access significantly and permitted parallel parenting to “level the field” shows that Justice Edwards did not think well of the Mother’s behaviour.  It is therefore important to collect evidence.  Judges hate credibility fights between parties when then there is no evidence to help him or her decide.

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