Issues surrounding child custody and access can be some of the most contentious faced by parents going through a separation or divorce. While it’s easy for one parent to think sole custody is the most suitable option, it can be a risky request to make. This was a lesson one mother recently learned when appealing a custody order before the Ontario Superior Court of Justice.
The mother and father were involved in an on-again-off again relationship that took place while the mother was married to another man with whom she had to children. The daughter between the mother and father involved in the trial was almost eight years old at the time of the appeal.
The original trial was around custody, access, and child support and Section 7 expenses. Regarding custody, the court granted joint custody with the mother having primary care and the father enjoying was described as “liberal defined access.”
The mother appealed the trial judge’s decision on the grounds that the conflict between her and the father as well as their inability to communicate was not consistent with the order for joint custody.
Issues of gatekeeping
The court was quick to point out that the trial was not about the conflict between the parents, nor their inability to communicate. However, the court did say that those problems arose because of the mother’s improper “gatekeeping.” This included giving the child her husband’s surname, and telling her to call the father “Bubba” rather than “Daddy.” In addition, she has once removed the child from the jurisdiction without telling the father. On another occasion she made false allegations of sexual abuse against him for which no evidence was ever presented. She made health care decisions about the child without discussing them with the father, and she made unilateral decisions about when he would be able to see the child.
The court did mention that outside of the above described incidents, she’s a “fine and experienced parent.” The father was described by the court as “ a bit of a free spirit, irresponsible with money, without prior experience as a parent, residing with his own mother. But to the father’s credit, he was not seeking sole custody or primary care of the child.
The court found that if it had not been for the mother’s gatekeeping issues, she would have likely received primary custody of the child, with the father receiving defined access, which would have included some guidelines on decision-making.
The court agreed with the trial judge’s finding that “[w]hen one parent seeks to marginalize the other parent, joint custody may be necessary to ensure that one parent’s continued involvement in the child’s life.”
The father didn’t get off scot free, though. The court agreed with the trial judge’s comments that the father work on his parenting skills and on settling his life, especially if things didn’t work out and a primary order for custody with the father was to become necessary. Regardless, the court still found that the best place for the child to live at this time was primarily with the mother.
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.