In a recent decision, the Superior Court of Justice had to determine the appropriate custody and access regime for a child whose mother lived in the United States and whose father lived in Canada and who each sought sole custody.

What Happened?

The mother is an American citizen and the father a Canadian citizen. The parties had married in Ohio and lived there until the child was 3 years old. The couple then moved to Ontario where they remained until their separation in January 2017, at which time the child was 4 years old.

The separation was sudden: the mother left the family home in Ontario and informed the father via text message once she was in the United States.

Subsequently, the father began to travel to Ohio to have access to the child. The couple eventually settled on a routine where the child would travel between their residences every 6 weeks. The parties managed to adhere to this schedule for the most part and did so with cooperation and civility.

There had been some discussions of reconciliation, however, these discussions came to an end and the parties commenced legal proceedings in both the United States and Canada. Although jurisdiction was an issue early on, the parties agreed that the Superior Court of Justice in Ontario had the jurisdiction to determine the custody and access issues.

The Mother’s Position

The mother wanted the court to make a temporary custody order in her favour, and in the event that the court hesitated to make such an order, she asked that the court confirm the post-separation schedule for the child would remain in place until trial.

She argued that there was evidence that the father was an unfit parent. She claimed he was controlling, threatening, and manipulative, and used a series of text messages as evidence to back up her claims. Her position was that the texts and the father’s actions of withholding the child (which involved one instance where the schedule had not been adhered to) pointed to “red flags of alienation.” and that the father was unable to prioritize the child’s interest over his own. She further claimed that given the father’s agreement to the previous arrangement, she had the father’s implied consent to be in Ohio.

The Father’s Position

Naturally, the father argued that the court should make the temporary custody order in his favour. He also sought an order requiring the mother to sign the child’s Canadian passport application, as well as an order requesting the involvement of the Office of the Children’s Lawyer.

He disagreed with the mother’s characterization of the whole situation. He had not been informed of her desire to leave until she had already done so, and had he known, he would not have agreed to the arrangement, nor would he have consented to it. He argued that the mother’s conduct and dictation of the terms of access raised doubts on her ability to put the interests of the child before her own. He also asked the court to read the text messages in context, not in isolation.

The father also created a detailed parenting plan for the child and argued that it was superior to any plan the mother had.  He pointed out that the case law has shown that parents should not be rewarded for creating a “status quo” by moving in order to gain a tactical advantage in litigation, especially where mobility is going to be an issue. The mother could have stayed in Ontario to resolve the parenting issue but chose not to.

The Decision

The court explored the governing principles of interim orders for custody and access. The rule of thumb is that the status quo will be maintained in the absence of compelling reasons to change the status quo to meet the child’s best interests. However, there is no presumption that the status quo should continue. The most important consideration is that the interim order is in the best interest of the child. If the status quo is not in the best interest of the child, it should be changed.

Here, the court noted that the parents are clearly devoted and committed parents, who both play significant roles in the child’s life. It was clear that the child benefits from her relationship with each parent, and it would be in her best interest to continue to have access to both parents and their families. However, the court also noted that both parents had engaged in “self-help”: the mother by leaving without discussing it with the father, and the father by withholding the child contrary to the scheduling arrangement. The text messages and the allegations made by the mother are serious and represent triable issues that should be assessed in a trial setting. Their ability to parent is something that is best left to a trial judge to assess.

In consideration of the principles governing custody and access and the evidence before the court, the court decided that it would be in the child’s best interest not to grant sole custody or a residential placement order sought by each parent. Rather, based on the evidence, it was determined that it would be best for a trial judge to make a decision on these matters, especially given the distance between the parents.

The court held that it would not make an interim order, and the parties should continue to govern themselves in accordance with the status quo they had established post-separation: the six-week rotation the child was currently on will continue.

What Did We Learn?

The challenges of parenting following a separation or divorce can be exacerbated where parents live in different countries. This can also have a strain on the children of the marriage. While arrangements can be made outside of court, some matters are best left to a trial judge, particularly where there are contentious issues at play.

When it comes to making decisions about custody and access, courts are often reluctant to make interim orders if they are going to a) disrupt the status quo, b) prejudice one party, or c) if they involve children and the orders are not in the best interest of the child. Even if the arrangement is complicated, it will be maintained if the child’s needs are being met, and if the court is of the opinion that it is in the child’s best interests.

When children are involved, divorces and separations become much more difficult. You now must not only think about what is best for your future, but what is best for your children, and that can sometimes be very hard. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients deal with the emotional rollercoaster that comes with determining what is best for your child or children. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.