Kruger+c.+Kruger+(1979)


 * Kruger v. Kruger (1979) (ONCA)**


 * __Facts:__** The parties were formerly married, and had two children. Upon the relatively amicable dissolution of the marriage, the temporary custody arrangement awarded joint custody to both parents, and the children divided their time equally between them. Throughout the proceedings, neither party wavered in their belief of the other’s fitness as a parent. At trial, the judge awarded custody to Mrs. Kruger with Mr. Kruger receiving “reasonable and liberal access”. Mr. Kruger then appealed the order, seeking joint custody.
 * NOTE:** The fact appear in the dissent suggesting that Wilson JA thought she was writing the majority opinion.

Does this case present a necessity of choosing between the parents? Does the Court of Appeal have the right to award joint custody?
 * __Issue:__**

What is remarkable about this case is each parent’s unwavering conviction that the other is a fit parent. The children showed no marked preference as between their parents, and were strongly attached to both. After collecting all evidence, the trial judge concluded that they were “equally entitled” to custody. However, the trial judge’s understanding of the necessity of choosing one parent or the other, through any “other factors likely to assist” in his decision-making is only valid if he believed himself “//unable in the circumstances with which he was faced to escape the need to make a choice between the parents//”. Inded, if it is possible to “ensure that both parents will continue to enjoy the closest possible relationship with their children… by a custody arrangement”, then this avenue should be pursued.
 * __Reasoning:__**
 * Majority (Thorson JA):**

However, in the case at hand, despite the abiding mutual respect between the parties, because joint custody was not explored at the trial stage, it is inappropriate to alter the order in such a fashion at this point, as it will necessarily be seen as a “loss” for Mrs Kruger. By its nature, a joint custody agreement must be mutually decided upon, and the appropriate time to do this is most often at the trial level. Because at this point there is no agreement on a joint custody arrangement, it would be foolish of the court of appeal to try to foist such an arrangement on the parties.


 * Held:** Appeal is dismissed, no costs awarded.

Because part of what formed the trial judge’s decision to award custody to the mother was a skepticism on the true nature of the father’s intentions given his consultation and value of the advice of his religious authorities, Wilson JA believes that the trial judge erred in granting Mrs. Kruger custody.
 * Dissent (Wilson JA):**

Perhaps it is now time for the courts to re-evaluate their “healthy skepticism” towards joint custody arrangements as divorce itself is becoming less momentous, less fraught, and less a situation requiring extraordinary policing. It has recently become apparent that the context of a “divorce action is the worst possible context in which to form and assessment of the spouses as people let alone as parents”, and perhaps this should erode the reluctance to award joint custody.
 * Held:** The appeal is upheld, and joint custody written into the divorce agreement.


 * __COMMENT:__** This case contains a great deal of material discussing the nature of parenting, shared parenting, the way courts view divorce and the nature of the adversarial system. It’s also a good read.