Background

There are three parties to this proceeding which involves the issue of parenting of a young child. They are the biological father and mother, who are the Respondents (RF and RM respectively), and the step-mother, who is the Applicant (AM).

RF and RM lived in Newfoundland when they had their only child. They subsequently separated and had a shared parenting arrangement. Not long after, RM asked RF to assume care of the child due to mental health difficulties. When the child was approximately one and a half years old, with consent of RM, RF moved to Ontario for better employment prospects. Following same, RF began a relationship with who is now AM, and he and the child lived with AM for over two years until their separation in December 2020. Shortly after, RF moved back to Newfoundland with the child and began living at RM’s house. RF and RM began caring for the child together. AM brought an application to have the child returned to Ontario.

Issue

What was the status quo of the parenting arrangement and what parenting arrangement would be in the best interests of the child?

Analysis

Test to be used to determine an issue regarding parenting of a child is always the “best interests of the child” test. As the name suggests, it is a test whereby the court considers all the needs and circumstances of the child before making an appropriate determination. The court noted that the first step is to determine what the status quo was regarding the parenting of the child as maintaining the status quo is presumed to be in the best interests of the child absent any compelling evidence that it would affect the child’s physical, mental and moral welfare. While AM claimed that the status quo was her and RF parenting the child together, and therefore that the child should be returned to Ontario, the court noted that since RF and AM are no longer together, they cannot return to parenting the child together. Instead, the court stated that the status quo is that of the child always being with RF as she had throughout her life. If the child returned to Ontario, she would have to split her time between RF and AM, which would disturb the aforementioned status quo of always being with RF.

With the above analysis in the backdrop, the court turned their attention to what arrangements are in the child’s best interests. AM argued that she was the one who was extensively involved in the child’s life for over two years instead of RM, and as such, RM could not resume being a mother to the child. The court disagreed and noted that RM has made significant efforts to maintain her contact with the child. Specifically, RM had video calls with the child every night for most of the time that the child was in Ontario, which showed commitment to maintaining contact with the child and participating in her life as best as she can. Ultimately, the court found that it was in the child’s best interest to remain in Newfoundland with RF and RM.

This case shines some light into the issue of determining where a child should reside in the face of two competing interests. For anyone that has a similar claim, it is important to speak to a family lawyer who can guide them through the nuances of the law and advise on the merits of their claim.

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