Background Facts

The parties in this case were married for approximately 11 years and had four children together. The parties separated in March of 2020, amid the COVID-19 pandemic. Following separation, both parties and the children continued to reside in the matrimonial home. The parties were engaged in significant dispute as to income, expenses and financial matters post-separation.

To the father’s surprise, in June 2020 the mother moved to her sister’s residence with the children. In July 2020, the mother was granted leave to bring the current motion before a case conference on the basis of urgency and emergency. The issue of urgency was based on the mother’s allegation that the father had withheld the children after an access period.

The issue this case dealt with was determining whether both parents should share in an alternating parenting arrangement in the interim or if the children should remain with one parent primarily.

The mother argued that she was the primary caregiver of the children since the father had gone back to work in 2019 and therefore the status quo was her as the primary caregiver. The father argued that he was the substantial caregiver of the children while he was unemployed from 2015 to 2019, and since he was unemployed at the time of trial, he should continue to be the primary caregiver to the children.

The Judge used this case as an example to show how parents’ unilateral decisions can cause unnecessary conflict and crisis and that in cases involving children, conflict should be avoided and discouraged.

Legal Analysis

As per section 24(2) of the Children’s Law Reform Act, the determination for custody and access is based on what is in the best interests of the children. It was of the courts view that subjecting the children to such an increase in conflict and division of the family unit was contrary to their best interest, and in fact, may increase the anxiety of the children.

With both parents proposing similar and adequate plans of care, and in the Judge’s opinion, both parents having played a substantial role in the caretaking of the children, the issue came down to the conflict between the parties.

The parties created a “tug of war” approach to the issue of custody and access. Irreparable smear tactics were used by both parties not only in court, but in some circumstances directly with the children. This exposure to adult conflict showed the court that the parties did not comprehend the negative effects such conflict could have on the children, demonstrating further a lack of awareness in their best interest.

According to section 16(10) of the Divorce Act, parents should have maximum contact with their children. Both parties had provided adequate plans for parenting, and aside from the conflict, seem to have always provided the children with love and a nurturing environment. As such, the court ordered the parties to share custody and parenting time of the children on an interim basis. The caveat to this determination being the requirement of communication between the parties to be electronic until the case conference, and otherwise to be communicated indirectly through lawyers or a third party. This requirement was an attempt by the court to prevent such harmful conflict from being imposed on and causing detriment to the children.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.