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In a recent case, an Ontario court considered both the mother and father’s requests for interim custody of their child. This case highlights the kinds of questions a court must grapple with in determining what custodial and residential arrangements are in a child’s best interests.

The Background

The parties began living together in May 2014 and separated in October 2018. They had one child who was born in 2016.

The mother and the father both brought urgent motions requesting interim custody of the child.

The mother claimed that the father had alcohol issues and that he was verbally and emotionally abusive. The mother also secretly recorded a conversation between her and the father, which demonstrated the father making numerous inappropriate comments in front of the child.

The father denied having a problem with alcohol. He also claimed that both he and the mother had been inappropriate at times, and disputed that the mother was the child’s primary caregiver and that he did not understand the child’s needs.

In making a determination with respect to custody, courts have to decide what is in the best interests of the child, including considering the factors set out in s. 24(2) of the Children’s Law Reform Act, as well as other relevant considerations. Among other things, children should have maximum contact with both parents if it is consistent with their best interests. There is also a presumption that regular access by a non-custodial parent is in the best interests of a child. In addition, the court must ensure that any child, as well as the child’s caregiver, will be physically and emotionally safe.

With respect to making interim orders, the status quo and avoiding creating a new status quo are important considerations. That is, in making an interim custody order, courts should generally maintain the status quo unless there are important reasons suggesting that a change is necessary and in the child’s best interests. The court explained:

Through the lens of the child’s best interest, the court must determine what temporary living arrangements are the least disruptive, most supportive, and most protective for the child. If appropriate, the status quo of the child, that is the living arrangements with which the child is most familiar, should be maintained as closely as possible.

Finally, in considering the urgency of a motion, the court must determine whether there is any abduction or threat of abduction; harm or threat of harm; dire financial circumstances; extreme situations justifying the court in acting immediately; or issues which are determined or deemed to be crucial, serious, vital, or essential.

The Court’s Decision

The court found that urgency was satisfied in this case, as the manner in which the parties behaved needed the court’s intervention on an urgent basis. It was clear that the child had been exposed to inappropriate behaviour and conflict that put her at risk of emotional harm.

In granting interim custody to the mother, the court noted its grave concerns that the father used abusive and vulgar language in front of the child. The court found that both parties, but particularly the father, had created a situation where their communication was toxic and highly inappropriate.

In addition, while the father denied having a problem with alcohol, the court determined that alcohol was clearly an important factor in the difficulties the parties had that led to their separation.

The court concluded that a joint custody order would not serve the child’s best interests, as there was no evidence of positive communication between the parties or an ability to work together. The court explained:

Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly, and uneventfully. This has not been [the child]’s experience.

Finally, the court noted that the mother had been the child’s primary caregiver at the time of the parties’ separation, and that the child had been in the mother’s sole custody since November 2018.

In light of all the factors outlined above, the court determined that it was in the child’s best interest to grant the mother interim custody.

Lessons Learned

Figuring out who should have interim custody of a child can be complicated. If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated 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 1-844-769-0737, or contact us online to schedule an initial consultation.