Custody & Access
Court of Appeal Moves Away From Custody Orders
The issue of child custody can cause tremendous stress and can lead to years of litigation, pitting parents against each other in a bitter battle to win. But having a winner and loser is not always in the best interests of the child. The recent decision of M v F, 2015 ONCA 277 involved a bitter dispute between two parents over access to their six year old child. The trial judge did not make an order for custody, choosing instead to order the implementation of a ‘parenting plan’. The Court of Appeal upheld the trial judge’s decision and made some interesting comments about custody.
The parties had been engaged in an on-and-off relationship for a few years and had been fighting over access to the child since shortly after his birth. The child lived with his mother, and his father had access during daytime hours only. During the course of the 34-day trial, one of the main issues was whether to allow the child to have overnight visits with his father. The trial judge concluded that it was in the best interests of the child to have overnights. His mother appealed the trial judge’s decision.
The parents’ relationship was complicated and toxic from the beginning. Both parties had children from previous relationships. Justice Benotto, writing for the Court of Appeal, noted that the parties had treated each other with cruelty and disrespect. The appellant alleged that the respondent had physically abused her. There were allegations by both parties of substance abuse, as well as lying and inappropriate conduct by both parties during the course of the litigation.
At the trial, Dr. Butkowsky, a respected child psychiatrist who had been involved with the parties since 2009 and was very familiar with the family, proposed a comprehensive parenting plan which included overnights with the father. He determined that overnights would be safe and were essential to the well-being of the child.
The trial judge agreed with Dr. Butkowsky’s recommendations noting of the doctor’s familiarity with the family and his expertise in his field. The trial judge further reasoned that the respondent had parented three children without incident or restriction and had spent many hours alone with the child in the past without incident. The trial judge ordered that Dr. Butkowsky’s parenting plan be implemented and that the child’s name be changed to include the respondent’s surname.
On appeal, the appellant raised the issue of custody. She submitted that the trial judge was required to make a finding of custody and his failure to do so constituted an error of law. The Court of Appeal disagreed, holding that it is not a requirement of Ontario legislation that a trial judge make a custody order. Section 28(1) of the Children’s Law Reform Act states that a court ‘may’ make such an order, but does not require the court to do so. Justice Benotto concluded that the trial judge could adopt the parenting plan proposed by Dr. Butkowsky without making an order for custody, noting
For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of ‘custody’ and ‘access.’ These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/lose syndrome’ in child custody battles has long been recognized. 
It was therefore open to the trial judge to adopt the ‘parenting plan’ proposed by the assessor without awarding ‘custody.’ It was also in keeping with the well-recognized view that the word ‘custody’ denotes ‘winner’ so consequently the other parent is the ‘loser’ and this syndrome is not in the best interests of the child. 
The Court of Appeal’s decision in this case signals a movement away from traditional awards of custody and access, and an increased focus on the best interest of the child. It will be interesting to see how this decision is interpreted and applied by the lower courts, and how this impacts families, and especially children, in the future.