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In a recent Ontario case, the court had to determine whether a father should have interim custody of his two children or whether the children should continue to live with their grandparents.


The Facts

The parties were married in November 2010 and separated in November 2016. They had two children, born in 2011 and 2014.

The parties’ separation had been rife with allegations of abuse and mental health issues. In November 2016, the mother was awarded interim custody of the children. A restraining order was issued, and the father was denied access.

In June 2017, the father was granted access to the children every second weekend from Friday to Sunday, as well as for a few hours every Wednesday.

Since the mother’s untimely passing in January 2018, the children had been living with their maternal grandparents.

The father subsequently brought a motion for interim custody of the children. 

The Father’s Position

The father wanted the children to return to his care and reside with him in the matrimonial home. He reasoned that he was a main caregiver before the parties’ separation and that there was no verified reason to restrict his time with the children.

The Grandparents’ Position

The grandparents argued that the children should continue to live with them, as they needed stability and continuity. They also claimed that serious concerns existed about the father’s ability to care for the children on a full-time basis.


The Governing Legal Principles

The court began by outlining that the relevant legislation with respect to applications for custody includes sections 20, 21, 21.1 and 21.2 of the Children’s Law Reform Act (CLRA). Among other things, these sections of the CLRA provide that a child’s parents are equally entitled to custody of the child. It also indicates that any person – including a grandparent – may apply for an order for custody of or access to a child.

The court went on to explain that section 24 of the CLRA sets out the factors it must consider when determining what is in the children’s best interest. These factors include:

  • the love, affection and emotional ties between the child and other people;
  • the child’s views and preferences;
  • the length of time the child has lived in a stable home environment;
  • whether the person applying for custody can provide the child with guidance and education, the necessaries of life and any special needs of the child;
  • the plan being proposed for the child’s care and upbringing;
  • the permanence and stability of the family unit the child will be living in;
  • the ability of the person applying for custody to act as a parent; and
  • any familial relationship between the child and the people who are parties to the custody application.

Further, in determining an application for custody, the court outlined that it must consider a person’s past conduct if the person has committed violence or abuse against their spouse, a member of their household, a parent of the child, or any child. The court indicated that the only other time it will consider a person’s past conduct is if it believes the person’s conduct is somehow relevant to their ability to act as a parent.


The Court’s Decision: Determining the Best Interests of the Children

Firstly, the court found that there was a strong emotional bond between the children and the maternal grandparents. The court also concluded, however, that the father was bonded to the children. The father’s relationship with the children was positive, and the children spoke well of him.

Secondly, the court noted that while the grandparents had been nurturing and good caregivers to the children, the father was also a fit and capable parent. While the mother had raised many accusations against the father, the police and Children’s Aid Society had not verified those allegations.

The court went on to conclude that the father’s request to unite his family unit was a viable consideration and in the children’s best interests. While the children had been living with the grandparents since January 2018, the court noted that the status quo was not the only factor it had to consider in determining the children’s best interests. The court also found that the father was capable of appropriately addressing the children’s needs.

While the grandparents had gone above and beyond the call of duty in helping with the children, in the end, the court awarded interim sole custody to the father, stating that:

it is now time for the children to return to their father’s care in their home. It is in their best interests that there be a short-term interruption to move back to their home with the father for the sake of long term stability.

The court explained that the legislation clearly prioritizes granting custody to parents whenever appropriate. As a result, courts have been guided by the principle that, “the welfare of the child is best served in the custody of its natural parent.”


Lessons Learned

Absent extenuating circumstances, courts have found that parents should have a preferential status in claims for custody. Indeed, as far back as 1987, the Supreme Court of Canada stated:

A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure the child’s well-being. He must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or mother or returns to live with them. The third person must also show that, unlike the person having parental authority he or she is able to provide the care and affection needed by the child.

If you have questions about your separation or divorce, contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for an initial consultation.

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