TMZ has reported that Mariah Carey and Nick Cannon separated in May. TMZ further reported that their divorce lawyers have been negotiating a property settlement and custody arrangement since this time.

Sources have stated that Mariah feels as though Nick has accepted nearly every job offered to him and, consequently, has been away from their two children for extended periods of time.

Let us take a legal look at how an Ontarian Court may decide the custody/access arrangement between Mariah Carey and Nick Cannon if their negotiations faltered and the matter was left for a judge in Ontario to decide.

For married spouses in Ontario who are divorcing, the legal principles for determining applications for custody and access are set out in section 16 of the Divorce Act. First and foremost, the best interests of the child is the primary and guiding principle for the courts when deciding a matter pertaining to custody and access. What is in the best interests of the child is determined by reference to the condition, means, needs, and other circumstances of the child (see section 16(8) of the Divorce Act). Furthermore, past conduct of a parent is irrelevant unless it affects the ability of that person to act as a parent (section 16(9) of the Divorce Act).

Secondly, a court will often be guided by the principle that a child should have as much contact with each parent as is consistent with the best interests principle stated above.

Custody refers to how major decisions for the children will be made and by whom. If the parents are able to communicate with each other effectively with respect to the children, a court will often award joint custody, meaning that the parents of the children will make major decisions together. Joint custody, however, does not mean that the child will split time between the parents. As often is the case, a court will often order that children will primarily reside with a particular parent in the case that joint custody is ordered.

If parents are unable to communicate with each other in any capacity, a court will order sole custody of the children. Further to this point, the case law has progressed to affirmatively hold that courts should not force two parties to communicate who have thoroughly demonstrated their inability to do so. The case law is firmly supported by the guiding principle of the best interests of the child.

In this case, there is no evidence to show that Mariah Carey and Nick Cannon would be unable to communicate with one another with respect to their children. Thus, a court may be inclined to order joint custody. Given Nick's extended periods away from the children, however, a court may order that the twins primarily reside with Mariah.