An Ontario court recently considered the interesting question of whether or not it was appropriate to grant interim custody to a parent while proceedings were underway.

The Parties’ Story and Positions

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

The mother raised concerns related to the father’s alcohol use and his verbal and emotionally abusive behaviour. According to the mother, the father’s alcohol use led to financial difficulties and ultimately their separation. She also stated that she was the primary caregiver of the child and that the father had little awareness of the child’s special needs.

The father maintained that both he and the mother were inappropriate at times, using swearing and derogatory language towards the other. He disputed that the mother was the primary caregiver and that he did not understand the child’s needs.

Both the mother and father brought motions for interim custody of the child.

In determining what custodial and residential order to make, the court must consider the child’s best interests. Among other things, a guiding principle is that a child should have maximum contact with both parents, if it is consistent with their best interests. As a result, there is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, and to know and maintain (or form) an attachment to that parent, should only be surrendered in the most extreme and unusual circumstances. Furthermore, the court must ensure that the child will be physically and emotionally safe.

There are additional considerations when a party brings a motion for interim relief. In particular, in making an interim custody order, courts should generally maintain the status quo unless there are important reasons suggesting that change is necessary in the child’s best interests. Maintaining the status quo, where appropriate, is the least disruptive, most supportive and most protective for the child.

The Court’s Decision

The court granted interim sole custody to the mother, with access to the father. In arriving at this conclusion, the court noted that it was extremely concerned about the nature of the parties’ communication and the child’s exposure to parental conflict. Sadly, both parties had created a situation where the communication was toxic and highly inappropriate. However, the father’s comments were particularly concerning and indicated a serious lack of insight into the child’s interests. For example, a recording demonstrated that the father had told the child, “You probably don’t have any fun in your life anymore. Daddy bought those things for you. You probably have a shitty life now.”

Furthermore, in spite of his denial, the father’s alcohol use was clearly an important factor that led to the parties’ separation.

In this case, the evidence demonstrated that a joint custody order would not serve the child’s interests and would not result in any change in the current toxic relationship between the parties. There was no information indicating that the parties could communicate positively or had an ability to work together. As a result, the court concluded that an order for joint custody would only perpetuate the hostility and power struggles between the parties. It would also strongly increase the likelihood that the child would be exposed to further toxicity and parental conflict, which was not the child’s best interest.

The court also found that the mother was the primary caregiver at the time of separation, and that she was available to care for the child given that she was not presently working.

Lessons Learned

Any order dealing with custody and access of a child will be based on the best interests of the child, with those interests analyzed from the child’s perspective. Interim orders will have additional concerns for the court to consider.

Contact Gelman & Associates if you are involved in a separation or divorce and have questions about your rights. 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.

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