(note: this blog is NOT legal advice)

Fierce battles over child custody are common in the tooth-and-nail arena of family law. Collateral damage inflicted on kids is obvious to those who have their eyes open, which, sadly, often does not include mom and dad. In response, more and more lawyers are opting for out-of-court methods such as mediation and collaborative law. One helpful tool in the out-of-court toolbox is to avoid the word “custody” altogether, on the basis that its inflammatory potential outweighs any possible benefit.

The law has increasingly recognized this, and a recent ruling by the Ontario Court of Appeal called M. v. F. adds further support to the notion that the term “custody” may be becoming obsolete. “For over twenty years,” said the appeal court, “multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of ‘custody’ and ‘access.’ ”

Contrary to popular belief, family litigation can be concluded and finalized without a custody order. “The Ontario legislation does not require the trial judge to make an order for custody,” the appeal court noted. “Section 28(1)(a) of the Children’s Law Reform Act is permissive, not mandatory: ‘The court may grant the custody of or access to the child to one or more persons (emphasis added).’ ”

Accordingly, in this case the trial judge refrained from awarding custody to anyone, opting instead to adopt a parenting plan proposed by a child psychologist — and the appeal court gladly affirmed his ruling: “It is in keeping with the well-recognized view that the word ‘custody’ denotes ‘winner,’ so consequently the other parent is the ‘loser.’ This syndrome is not in the best interests of the child.”

Hopefully the six-year-old boy in the M. v. F. case will experience a more peaceful future, which is not saying much, since — as the appeal court lamented — his parents’ relationship “has been aptly described as toxic,” they have treated each other “with cruelty and disrespect,” and they have been arguing about parenting arrangements for the boy’s entire life.

Between the two of them, the parents have spent two million dollars — repeat, two million dollars — on legal costs. A recent story in The Globe and Mail remarked on this gargantuan figure, noting that “the conflict turned a precocious and sociable child into a shy, fearful one.”

Indeed, as the Globe writer says, “M. v. F. is a cautionary tale for parents who would rather fight than settle.” While there may be a certain satisfaction for parents in laying vengeance upon each other, or beating each other with the cudgels of rebuke, it’s a long, expensive road, and the kids won’t like it.

Bill Rogers is a Toronto lawyer, mediator and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice.

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