For divorced or separated parents, working through issues concerning child custody and access can be a very difficult experience. This can be the case even if all involved live in the same city. But what about when two parents live in different countries? In a recent case before the Ontario Superior Court of Justice, the court heard from parents, one of whom lived in the Canadian Niagara Falls and the other in the American Niagara Falls. The court was tasked with determining where their child should live and attend school.

The background

The parents (“S” and “J”) were married in Canada on July 29, 2014. They lived in Niagara Falls Ontario. Their child was born in November 2014 in Buffalo New York. As such, he is a dual citizen. J testified that it was important for her that their son be born in the United States so he would have dual citizenship. The couple returned to Canada as soon as they were discharged from the hospital. They lived together in Canada until the summer of 2017. Upon their separation, J moved to the American side of Niagara Falls, though the parents shared equal custody of their son.

At the time of the trial, the child had turned 4 and will be starting school in September. Each parent was seeking sole custody of the child so he could attend school in their respective countries.

The parents do not have a great relationship. S testified that J’s family does not provide a good environment for the child (due to smoking, possible alcohol and drug use by J’s father) and that J lets the child play scary video games which give him nightmares. She also testified that J was not truthful with her during their marriage, which led to their separation. While J rebutted much of what S said, the court found S to be a more credible witness, stating J “tended to not answer the questions in cross-examination, and she often provided long rambling answers which were difficult to understand.”

The court’s analysis

The court found it was clear that each parent loves the child and wants what is best for him, which makes it difficult to determine who should receive custody. Keeping in mind that the child’s best interests are the sole determining factor in such a situation, the court had to consider a wide breadth of evidence provided by each parent. Ultimately, while each parent loved and cared for the child, the court found S’s communication and inclusivity towards J to be factors that tilt things in her favour. The court found that S tries to talk to J about their child’s health and learning needs, but that J prefers to communicate strictly via text message. Additionally, while S performed research into what American schools would be appropriate for the child, J did not look into Ontario schools for him. The court wrote, “I have grave concerns that if (J) were granted sole custody and primary residence of (the child), she would effectively cut (S) out of (the child’s) life.  Because of the inclusive way that S has acted in the past, I have no such concerns if she were granted sole custody and primary residence of (the child).

The court ruled that the child would live with S in Ontario and attend school there.

In looking at how visitation with J would work, it took the principle of maximum-contact into account. S proposed that the child visit J every other weekend. The court did not find this to be adequate and instead determined that the child’s visitation would be patterned in a way where he would spend two consecutive weekends with J, followed by one weekend with S.

In addition to the emotional difficulty associated with access and custody issues, there are also complex legal issues associated with it. As such, it is important to obtain good, experienced, and independent legal advice while navigating such matters. The team at Borden Family Law has been helping our clients with all types of family law matters for over 17 years. We can be counted on to provide you with the information and representation you need to resolve your family law issues. Please contact us online or by phone at 905-576-6090 to talk today. Don’t forget to ask about our flat fees and bundled services.