This case presents an example of the difficulties involved in determining custody of a child where the nature of the parties’ relationship prevents joint custody, but both parents are equally capable of parenting the child.

So, which parent prevails?

Background

The parties met in 2006, began cohabitating shortly thereafter, and separated in 2009 after producing a child, Renee.

Renee is the third child for the mother, who had two children from a previous marriage; those two children resided primarily with their father, in Niagara Falls.

Upon separation, the parties shared equal time with Renee and a temporary order was made providing for week about access to both parents.

In June 2010, the mother relocated to Newmarket to reside with a new boyfriend. The shared and equal access regime continued between the parents, with the mother’s boyfriend transporting the child between the mother’s home in Newmarket and the father’s residence in North Bay.

Based on an investigation and report concluded pursuant to the Courts of Justice Act, both parents were deemed to possess significant weaknesses. The clinical investigator was unable to recommend which parent was better equipped to obtain custody and instead suggested that both parents seek counseling for their respective personal issues.

Analysis

The court emphasized the importance of approaching the case in a child-focused way, identifying Renee’s best interests as the principal factor to guide the court’s analysis.

Given the tumultuous nature of the parents’ relationship and their particular inability to communicate effectively, Justice Rodgers determined that joint custody was not a feasible option in this case.

However, the court acknowledged that the child possessed a strong attachment to each parent and that she had the potential to thrive in either parent’s care. After weighing the relative merits and deficiencies of the mother and father, Justice Rodgers turned to a consideration of the factors to be considered in a mobility case involving two parents who have parented equally, as set out in the Ontario Court of Appeal’s decision in Berry v. Berry.

In applying the test set out there to the facts of the case at bar, Justice Rodgers opined that the custody issue should be determined by considering which parent was in the best position to be the access parent, having regard to the desirability of maximizing contact between the child and both parents.

To this end, the court found that the father would be in the best position to fulfill the role of an access parent, as he was self-employed with flexible work hours, had no other children to see and possessed a vehicle.

With regards to the mother, the court found that as an access parent, she would have to continue to attempt to coordinate balancing access to Renee with access to her other children. Moreover, Justice Rodgers held that the mother’s access to her sons would be less likely to suffer if Renee were to reside with her.