BACKGROUND

The parties have one 4-year-old child (“the Child”), who has primarily lived in his mother’s care since he was born. The Child has parenting time with his father on weekends.

CAS and the police have been involved with the family since the Child’s birth. There is evidence that the Child was exposed to conflict, that the father was controlling, and that the father did not treat the mother with respect.

ISSUES

1. Who should have decision-making responsibility over the Child?
2. What is the appropriate parenting schedule?

ANALYSIS

The Law

Section 16.1(1) of the Divorce Act (“the Act”)allows the court to make an order regarding parenting time and decision-making responsibility. The Court went on to note that they can only consider the best interests of the child when making a parenting order pursuant to the factors set out in section 16(3) of the Act. This includes, but is not limited to:

1. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. The history of care of the child;
3. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
4. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; and
5. Any family violence and its impact on, among other things,
   1. the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and
   2. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.

If there are any allegations of family violence, the Act requires courts to consider the impact of the family violence pursuant to the factors in section 16(4).

1. Who should have decision-making responsibility over the Child?

The Child’s Medical Care

There was evidence that whenever the Child was ill, the mother failed to take the Child to the doctor. Instead, the mother opted to rely on the internet to diagnose the Child. For example, the Child was known to have unusually long colds, but the mother stated that this was due to lactose intolerance. The mother did not take the Child to a doctor to confirm this. In addition, the Child had an eye infection that remained untreated for approximately 2 months, until the father got drops to treat the infection.

In contrast, the father consulted a doctor whenever the Child was unwell. Thus, to the Court, this was a factor in the father’s favor.

The Child’s Schooling

Within 1 month, the Child had been absent from school 12 days and late on 3 days. The mother explained that she would let the Child sleep in or stay at home if he was feeling unwell, once again using the Child’s alleged lactose intolerance as the reason. The mother also stated that kindergarten is not mandatory, so she did not think it wrong if the Child stayed home sometimes.

However, the Court noted that after the father’s regular parenting time on weekends, the Child was not absent or late on Mondays. Thus, lactose intolerance cannot be the reason as the mother claims. The Court found it more likely that the mother did not think it mattered whether the Child missed school or was late.

On the other hand, the father believes in structure and was unhappy with the Child’s attendance record.

In this case, the Court found that the mother’s overall relaxed approach was not in the child’s best interests. Rather, the Court determined that although the Child was happy with the mother, the father would be best able to care for the Child and make decisions for him.

2. What is the appropriate parenting schedule?

The mother and the Child lived in a 2-bedroom apartment, where the Child slept in the mother’s bed since the second bedroom was used for the mother’s business. The mother did not express any intention to move the Child into the second bedroom.

On the other hand, the father lived in 2 different locations: with his mother on the weekends and with his grandfather during the week. If the Child lived with the father, then he would also live in 2 different locations. Further, either the father, his grandfather, or his mother would be able to pick the Child up from school.

The Court was also concerned that the mother would have no assistance in caring for the Child since she had no support system in place. In contrast, the father had a family to help him.

Exposure to Adult Sexual Activity

The mother stated that the Child sleeps with her in her bed. She also informed the court that she was engaged.

The father stated that he and his mother observed sexual behavior in the Child, such as touching her breasts. Although the CAS worker in this case did not investigate this matter further, they later admitted to the Court that they did not enquire how often the mother’s fiancé had slept over, or what sexual activity, if any, the Child may have witnessed.

The Court determined that the mother was not credible on this issue, as they did not believe that her fiancé only slept over on weekends when the Child was not present. Thus, the Court found that it was more likely than not that the Child’s sleeping arrangements exposed him to adult sexual activity. Further, the mother had no plans to move the Child out of her room, which meant that the Child would continue to be exposed to adult sexual activity.

Thus, since the Child would not be exposed to adult activity and would have his own space should he live with his father, the Court determined that this would be in the Child’s best interests for his primary residence to be with the father.

Impact of Family Violence

Although the CAS has been involved with the family since the Child’s birth, and there was evidence that the Child had been exposed to conflict, the CAS did not raise concerns about either person’s ability to parent.

The Court determined that the mother had been subject to the father’s verbal and emotional abuse, which is a form of family violence. This is a significant factor in determining whether it is in the Child’s best interests to be in the father’s primary care. In this case, the Court was concerned that the father would alienate the Child from the mother.

Despite this concern, the Court still found that it would be in the Child’s best interests to reside primarily with the father, and for the father to be the sole decision-maker, due to the reasons above. However, the Court’s condition for this ruling was that the father would not speak ill of the mother.

CONCLUSION

Overall, the Court found that the father would provide the Child with a stable and healthy environment. Thus, the Court ruled that the Child’s primary residence will be with the father and the father will have sole decision-making responsibility. The Court also determined that the mother would have parenting time.