Matters related to child custody and access can be some of the most stressful and emotional issues for parents going through a divorce or separation. As many of our blogs demonstrate, divorces can sometimes take a long time to work their way through the courts. The Ontario Court of Justice recently issued a decision in a case which tackled the interested question of whether a mother should be granted interim custody to a parent while proceedings are still underway.

The history of the relationship

The mother and father began living together in 2014. They had one child, a girl who was born in 2016. The couple separated on October 10 2018, and by the time of the trial was just shy of three-years old.

Issues before the court

The mother and the father each brought motions before the court, with each seeking custody of the child. The mother voiced concern over the father’s consumption of alcohol use, which she alleged led to financial difficulties and eventually, to their separation. She also told the court that she was the child’s primary caregiver during the couple’s time together, adding that the father was not aware of the child’s special needs (though the court’s decision did not elaborate on what these were). Finally, the mother had recorded several interactions amongst the father, mother, and child where the father said things such as, “You probably don’t go for walks anymore, eh, (child). You probably don’t have any fun in your life anymore. Daddy bought those things for you. You probably have a shitty life now.” He also said, “It’s all right, M., you’re not going to see me again. I’m going to drive my car off the 401. No purpose to live anymore.”

The father testified that the mother presented the recorded conversations out of context. He admitted that he had been inappropriate at times, but testified the mother was equally inappropriate. He also disputed that the mother was the child’s primary caregiver or that he didn’t understand the child’s needs.

The court’s analysis

The court started its analysis by stating that it must consider the child’s best interests first and foremost. Ideally, the courts try to follow the principle that the child should have maximum contact with each parent if that is possible while keeping the child’s best interests in mind. Even when one parent is awarded custody, there is a presumption that the non-custodial parent should have regular access. Only in extreme situations should the courts act contrary to those principles.

In this case, the court was satisfied that intervention was necessary.

The court decided to grant sole interim custody to the mother, allowing the father access. The court was concerned about the communication between the parents, writing,

“It is clear (the child) has been exposed to entirely inappropriate behaviour and conflict between the parents that is not in her best interest and that has, as outlined in the Wellkin report, likely impacted her behaviourally and puts her at risk of emotional harm.”

A joint custody arrangement would not serve the child’s best interests in this case. The court also found the mother to have been the primary caregiver at the time of the separation, and since she was not working at the time, was in the bst position to care for the child.

If you have questions about child custody, contact Windsor family lawyer Jason Howie. Jason takes the time to listen to the needs of each client, helps you consider all of your options, and provides you with the best recommendation. Call 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.