Morant v. Noel: Time for Change?

There are copious amounts of case law on issues of custody and access, yet every now and then a surprising case still emerges. Morant v. Noel (“Morant”) is such a case. In Morant the mother was seeking an Order of sole custody, where the father was seeking joint custody. The child at issue was five years old and had essentially been on a shared custody regime her whole life, spending roughly half her time with each parent. However, technically the mother’s home was the primary residences and she had an existing Order of sole custody. The child slept at the mother’s home Monday to Friday, but was with the father all evenings until about 6:30-7:30pm.

In this decision Justice Karswick turned around the custody situation by Ordering joint custody with the father’s home being the primary residence. Justice Karswick rationalized this switch by stating that the mother’s schedule, which included school and work, made it difficult for her to be home for the child. Justice Karswick further stated that the father was home more, had a more accommodating schedule and disposition. The fact that the mother had thwarted the father’s access on a number of occasions was a factor in this decision. Of course all custody and access decisions are highly contextual and fact based, which must be remembered in any reading of this case.

This Post Has One Comment
  1. I recently read both this case and the Family Law Newsletter’s comment on it. The Newsletter described the decision as “something has gone seriously wrong here”. Changing custody may have been a bit drastic when other options, such as an order that more clearly defines access, are available, but nonetheless I feel compelled to defend the decision.

    The Newsletter describes the decision to change custody as draconian. It sites the father’s injury as the reason for giving custody to the father. My reading of the case is different.

    The judge takes the time to mention the father’s relationship with the child. The father spends significant time with the child and the mother’s actions have at times frustrated the father’s relationship with his child. Each case is fact specific and the judge is privy to evidence that does not necessarily make it into the reported decision. Such other factors or judge-determined fact may not be evident in reading the written decision.

    Additionally, it appears that the original custody and access order in this case was made by Minutes of Settlement, and then varied on Consent. Although not supported by the written decision, being low income parties, the father may not have had the financial means to fight for joint custody of a then two-year-old and he may have decided his only option was to just agree to what the mother wanted.

    Despite any formal custody order that may be in place, the judge pointed out that the real status quo in this situation seemed to be a shared custody situation. Thus, this decision may not be draconian, but instead a reflection of the true status quo. The decision is ensuring a situation where the child can flourish with a relationship with both parties.

Leave a Reply

Your email address will not be published. Required fields are marked *