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Joint Custody in Divorce

There had been a growing trend, in Ontario, in family and divorce law, over the last few years, for family courts to order joint custody of children. The hope, by some, was that the parenting skills of the parties could be improved with awards of joint custody. The recent Ontario Court of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend into perspective.

In this decision, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate without screaming at each other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.

The Appeal Court held that, for an award of joint custody to be granted, there must be some evidence that demonstrates, that despite the parent’s own strong conflict with each other, the parties can and have cooperated and communicated appropriately with one another. In this case there was evidence to the contrary, there was no expert evidence to help the trial judge decide how a joint custody order would advance the child’s emotional and psychological needs and the child was too young to communicate her own wishes.

Approximately the same time this case was decided, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court upheld the trial judge’s order of joint custody. In this case the trial judge had the benefit of hearing the evidence of the Children’s Lawyer who presented the children’s wishes and who recommended joint custody. It was held that the trial judge had heard evidence from third parties with respect to coöperation and proper communication between the parties. The trial judge also looked at the history of co-parenting during the marriage and that despite their intense conflict, the parties could and had effectively communicated with each other and placed the interests of their children ahead their own, when required.

To summarize, in Ontario joint custody cases, it would seem that the courts will now be looking more closely for evidence from third-party and expert witnesses, which can prove that the parties can and have cooperated and communicated appropriately and have been able to put aside their own differences and conflict, for the benefit of the children. The lack of historical coöperation and appropriate communication between the parties will greatly limit the success of a joint custody application. The assumption by some, that the granting of joint custody will improve the parenting skills of the parties, will not be a enough reason on it’s own to grant joint custody, in the absence of existing good coöperation and communication between the parties.

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If you think divorce is the only option…read on!

Going through the Pain Barrier

Nobody likes pain but its there for a purpose. I am a long time supporter of The Leprosy Mission and one of the things that I’ve discovered about leprosy is that its not normally the disease that results in a persons fingers or toes falling off, it’s the fact that the disease of leprosy stops a person being able to feel pain and so they will unconsciously burn themselves badly and not feel it. The nerve endings have been damaged and so they cannot feel pain at all and the results, more often than not, are the hideous deformities that we now associate with a leper. A leper would love to feel pain because they know that pain is given to us to warn our bodies that something is wrong that needs put right, if possible. Pain is not always a bad thing.

I run marathons. Do you think I feel pain when I run a marathon? You bet I do! A marathon is one of the supreme tests of endurance that average people can undertake. During the run your body uses up all its stores of carbohydrates and other necessary body fuels and then begins to feed off itself – it turns cannibal, if you like. This is painful. As well as that, it is not uncommon to pull a muscle, develop a blister, get a stitch, hurt your joints or any other number of painful ailments. Your body is telling you to stop, this is damaging to it! In this context, pain is your body’s natural way to tell you that you are overdoing it – and of course you are. However, all of us can ‘overdo it’ for a lot longer than we think is possible initially. We can learn to acknowledge the pain and, whilst taking steps to minimise it, we can still run on and on. Mind over matter if you like.

One of the great acts of heroism I ever witnessed was during an Olympic marathon when the Tanzanian representative fell during the race badly injuring himself. He got up and struggled on in obvious pain whilst all the other runners disappeared up the road in front of him. It was demoralising for him but he refused to give up. He struggled on and entered the stadium with only a few people still left in the stands to cheer him home. He finished the race with blood pouring from his leg wound just as they were taking down the finishing line and a television reporter asked why he hadn’t just given up after falling so badly. His response was brilliant. He replied, “My country did not send me here to start a race. They sent me to finish a race!” Too many of us start the race but are not so committed to finishing.

I am firmly convinced that if a couple acknowledge to each other that there will be times of pain then they will be better able to cope with it for a period when it happens. In the western world, we have been brought up with this strange belief that we should never suffer and so, when we inevitably do hit times of suffering, we have not prepared ourselves to handle it properly. I have a friend who lectures on philosophy in universities in many third world countries. He says that one question he is never asked in third world countries is, “Why does God allow suffering?” The reason for this is that suffering is just such a normal part of their lives that they cannot imagine that anyone doesn’t suffer. In fact it’s the suffering that makes them into the people they are. Can you accept that suffering makes you a better person?

Here are five things we can do when we feel pain in our relationship:-

1. We need to acknowledge that there is pain and try to isolate what is causing it.
As we have said already in regard to the lepers, pain has a purpose. It tells us that something is not right. When we feel pain in our relationship we need to stop and analyse why we are feeling that particular pain. When I was an accountant and had a bit more money at my disposal, one of the things I would do when I felt some pain in my marriage was to throw a bit of money at it. We’d take a holiday, go for a nice meal, buy some new clothes, get our hair done up (well at least my wife would do this). Now, if you’ve got the resources, there is nothing intrinsically wrong with any of these things but we need to be aware that by distracting our minds for a little while from the cause of the pain it doesn’t make the pain go away long term. It only puts a plaster over a wound that needs treatment. However, all we were doing by throwing money at our problems was delaying the inevitable and sooner or later we would have a big argument.

It’s a bit like developing a toothache. Sure, you can dull the pain by putting some painkilling drug on your gum but if the cause of the pain is not dealt with, we know that it will flare up again, and next time even more painfully. Indeed if we kept on ignoring the pain then it might result in a tooth being removed. What started out as a simple toothache resulted in surgery. Not good.
In marriage there are a number of ways of figuring out what is causing the pain. Most of them common sense. You could try just talking to each other. Now there’s a novel suggestion! You could try doing the simple exercises in chapter 2 of this book and then discussing the results. You could talk to a professional counsellor who is trained to get to the bottom of painful issues. Whatever you decide to do it is crucial that you do something and do not ignore your pain. Once again the keyword is action.

2. The second thing we can try when pain rears its probing head is something that might seem very obvious but it is worth stating again just in case you miss it. Make sure that the pain you feel is associated with your marriage and not something else, like your job or even your children. So often we can be under pressure at our work and then come home and take it out on our partner. This is called displacing the pain. One of the things that I had to learn to do was to actually say to my wife, when I came home after a particularly hard day at work, that I was feeling stressed and tired. At first it felt like a confession of weakness and it wasn’t easy for me to admit that sometimes I wasn’t coping as well as I’d like to pretend. When I admitted as much to my wife, almost every time she was able to understand and take a bit more of the household pressure for a short time.

On other occasions the pressure was in the other direction and after a hard day of dealing with young children my wife would sometimes take out her frustrations on me. If I failed to recognise that this was happening the result could easily be a full-blown argument over pain that had been displaced. It is very important to be able to admit to feeling under pressure and to ask for some help from your spouse. If you don’t, the pain you feel elsewhere will automatically come out in your marriage.

3. The third thing to fix in your mind and believe is that pain is not a signal that your marriage is over.
When I’m running a marathon I need to keep reminding myself that pain is a totally natural for this event and expected part of the race. I do not give up at the first twinge or even at quite severe pain. I battle through it. Of course, I have to put up with some pain if I want to finish the race. One thing that drives me nuts these days is when I read a report in a newspaper of the latest celebratory couple who have split up citing ‘irreconcilable differences’ as the cause. What they are really saying is that they encountered a wee bit pain and so just gave up! Usually they live such a pampered lifestyle that any sort of pain is just not acceptable and so they walk away (to repeat the exercise with someone else). Do not succumb to this modern malaise. If you never learn how to put up with a bit of pain, every relationship you enter into will head down the same path. If you don’t believe me, just check out the marriages in Hollywood. Don’t become a quitter. Pain is not the end – it’s a sign that something needs to be done. In fact, it can be a beginning if you let it.

4. Stop focusing on the pain.
Whatever you focus on will begin to define who you are. If all you can see are the bad things in your marriage it won’t be long until your marriage accurately reflects your focus. In a marathon, if I keep thinking about how painful it is, there is a big temptation to give up. So what I do is to try and focus on more pleasant things such as the scenery, the joy of running, the anticipation of finishing, other runners (especially those who dress up in stupid outfits), anything to divert my attention from the pain for a little while. It’s amazing how often the pain is actually more mental than physical. I believe that the same thing can be achieved in marriage. Instead of focusing on the toothpaste lid or the toilet seat (to quote just two clichés) why not focus on your partner’s great sense of humour or their willingness to always switch off the lights or any of a hundred other endearing qualities? It’s amazing how trivial the irritations become when you remove them from the centre of your focus.

Try this simple exercise. Take a very small coin and hold it arms length between your finger and thumb. Does it block out much of the view behind it? No, obviously it doesn’t. Now bring the coin up closer and closer to your eye and close the other eye. What happens? It blocks your view almost completely, doesn’t it? It’s only a small coin but it can completely obliterate your view if you let it. Often the same thing happens in marriage. You can forget all the tremendous blessings you have together and focus on the one tiny fault until it takes over and dominates your thinking. Don’t allow it to do so. Now, what you’ve just read might sound like a contradiction to point 1 but its not. Don’t get me wrong, I’m not suggesting here that you bury your head in the sand regarding pain in your marriage but what I am saying is to make sure that the thing you think is causing you pain is actually as bad as you are making out. Have you just become so used to whining about something that it has come to dominate your thinking unnecessarily? Don’t let a small pain obliterate your view of a great marriage.

5. Share the Pain
Can I just remind you of something? You are married. It’s okay to share the hard things with your spouse. Remember the vows that you took? “For better and for worse, for richer or for poorer, in sickness and in health.” Perhaps you’ve always felt that you had to be strong and support your spouse and so when you feel pain what do you do? Pretend it’s not sore? Tell him/her that you can cope? Why don’t you just admit that you’re finding something tough and ask for their support? It might be the very thing that draws you together. Share , share, share.

As I draw to the end of this chapter I want to leave you with an amusing story.

A little old couple walked slowly into a McDonalds one cold winter evening. They looked out of place amid the young families and young couples eating there that night. Some of the customers looked admiringly at them. You could tell what the admirers were thinking. "Look, there’s couple who have been through a lot together, probably for 60 years or more!"

The little old man walked up to the cash register, placed his order with no hesitation and then paid for their meal. The couple took a table near the back wall and started taking food off of the tray. There was one hamburger, one order of French fries and one drink. The little old man unwrapped the plain hamburger and carefully cut it in half. He placed one half in front of his wife. Then he carefully counted out the French fries, divided them in two piles and neatly placed one pile in front of his wife. He took a sip of the drink, and then his wife took a sip as the man began to eat his few bites.

Again, you could tell what people around the old couple were thinking. "That poor old couple." As the old man began eating his French fries, a young man stood up and walked to the old couples' table. He politely offered to buy another meal. The old man replied that they were just fine. They were used to sharing everything and, anyway, their appetites were not what they used to be.

Then the crowd noticed that the little old lady still hadn't eaten a thing. She just sat there watching her husband eat and occasionally sipped some of the drink. Again, the young man came over and begged them to let him buy them another meal. This time, the lady explained that no, they were used to sharing. As the little old man finished eating and was wiping his face neatly with a napkin, the young man could stand it no longer and asked one last time if he could buy them one more meal.

After being politely refused again, he finally asked the little old lady, "Ma'am, why aren't you eating. You said that you share everything. What is it that you are waiting for?" She answered, ………… "The teeth!"

Aaaagghhh! Yes I know it’s disgusting, but it's probably not a true story and anyway it does illustrate the principle of sharing in a way that you will not forget. Will you?

Back to pain. As I said in the opening sentence, nobody enjoys pain. However, if you can just acknowledge what it is trying to tell you, but not allow it to knock you off track, then your marriage will survive and grow.

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