Custody Issues in Matrimonial Proceedings

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When spouses separate courts are often faced with the task of determining who will have custody of the child or children of the marriage or of the relationship.

It is important to be clear on what is the meaning of ‘custody’.  In family law ‘custody’ refers to the authority to make decisions regarding the welfare of the child. This means that if a parent has sole custody of a child, that parent is the one who makes all the decisions relating to the child.  If both parents have joint custody or shared custody then both parents make decisions relating to the child. It is possible for parents to have joint custody of a child with the primary residence of the child being with one parent.

How does the Court determine who gets custody of the child?  In Ontario two pieces of legislation offer guidelines as to how custody issues may be determined. If parents are married and are seeking a divorce, the custody issues will be determined under the Divorce Act. For unmarried parties or parties not seeking a divorce custody is determined under the Children’s Law Reform Act.

Under the Divorce Act section 16(8) states that in making a custody order the court shall take into consideration ‘only the best interest of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child’.

Under the Children’s Law Reform Act section 24 mentions the best interest of the child and states the factors which will be considered by the court. These factors include the love and emotional ties between the child and the person claiming custody, and the permanence and stability of the family unit where it is proposed that the child will live. The court will also consider the ability and willingness of the person applying for custody to provide guidance and education and the necessaries of life; the relationship between the child and the applicant; whether there have been instances of abuse by the applicant against his or her spouse or against any member of the household or against any child. It is clear that under both pieces of legislation the best interest of the child is of paramount consideration.

Apart from violence and abuse the court will not consider the applicant’s past conduct unless it has a direct bearing on the applicant’s ability to parent the child.

In many cases both parents may qualify as being able to promote the best interest of the child.  The issue may then become one of either sole custody to one parent or joint custody to both parents. Since joint custody involves joint decision making it may not be expedient for parties who do not get along to have joint custody. The presence of anger and bitterness in a relationship will obviously affect the parties’ ability to make decisions jointly regarding the child. This was observed in a number of court cases. For instance in the case of Daly v Waddle the court found that either parent could adequately meet the needs of the child. However the father’s claim for joint custody was not granted because the constant squabbling between the parents would have made it impossible for them to make decisions together regarding the child.  In that case the court awarded sole custody to the mother.

In instances where both parties seek sole custody and are both capable of meeting the needs of the child it is likely that the court may grant sole custody to the party who has been the primary care giver of the child.


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