Kaplanis v. Kaplanis (2005), 194 O.A.C. 106 (CA)
MLB headnote and full text
Temp. Cite: [2005] O.A.C. TBEd. JA.107
George Kaplanis (plaintiff/respondent) v. Patricia Kaplanis (defendant/appellant)
(C40789)
Indexed As:
Kaplanis v. Kaplanis
Ontario Court of Appeal
Weiler, Armstrong and Blair, JJ.A.
January 31, 2005.
Summary:
A couple separated. They had one child. At issue, inter alia, were custody and access and the division of net family property.
The Ontario Superior Court, in a decision reported at [2003] O.T.C. Uned. 546, awarded the parties joint custody. The court also ordered the parties to attend counselling to improve their parenting skills and that decisions respecting the child’s schools, activities and hobbies be made by an unnamed counsellor if the parties could not agree. After calculating the net family property, the trial judge ordered the father to pay the mother $4,950.26. The mother appealed the order of joint custody and sought sole custody. The father cross-appealed the payment order.
The Ontario Court of Appeal allowed the appeal and dismissed the cross-appeal.
Family Law – Topic 2034
Custody and access – Supplementary orders – Compulsory counselling – Parents separated – The trial judge awarded joint custody to the parents – She also ordered them to attend counselling to improve their parenting skills and that decisions respecting the child’s schools, activities and hobbies be made by an unnamed counsellor if they could not agree – The Ontario Court of Appeal overturned the counselling order – The court stated that “The legislation does not specifically authorize the making of an order for parental counselling and, while some trial judges have held the court has inherent jurisdiction to make a counselling order, carrying out the order requires the co-operation of the parents. There was no evidence that the parties would be able to agree on whom to appoint. There was no agreed process for the appointment of a counsellor in the event that they could not agree who should be their counsellor. Nor was there any evidence that they were willing to submit their disputes to be decided by a counsellor outside the court process envisaged under the Divorce Act and without recourse to it.” – See paragraph 14.
Family Law – Topic 2072
Custody and access – Joint custody – When available – A couple separated – They had a two year-old child – The mother sought sole custody – The father sought a form of joint custody known as parallel parenting – The Ontario Court of Appeal held that the trial judge erred in principle in awarding joint custody where there was no evidence of historical co-operation and appropriate communication between the parents, and in the hope that it would improve their parenting skills – Where the order for joint custody was not appropriate and the father had not sought sole custody, the court ordered that the mother be awarded sole custody – See paragraphs 4 to 16.
Counsel:
D. Smith and Susan E. Milne, for the appellant;
George Kaplanis, the respondent in person.
This appeal was heard on November 18 and 19, 2004, by Weiler, Armstrong and Blair, JJ.A., of the Ontario Court of Appeal. Weiler, J.A., delivered the following decision for the court on January 31, 2005.
