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In family law, there is a long-held misconception that mothers will be favoured over fathers for decision-making responsibility (custody) and parenting time (access). Back in the 1950s, courts firmly held that young children should spend the majority of time with their mother in what was called the “tender years doctrine”. This is no longer the case. As gender roles evolve and change, some women choose to develop long-term careers while some men choose to care for their children on a full-time basis. For some families, a balancing act is required as both parents maintain employment.

Do courts favour mothers in decision-making responsibility (custody) and parenting time (access) disputes?

Ultimately, mothers are not favoured over fathers during legal disputes regarding children. Social science research suggests children benefit from the active involvement of the father and mother.

Pursuant to the Children’s Law Reform Act, both parents are equally entitled to decision-making responsibility and parenting time with the child. Courts understand that fathers are able to provide for their children in the same manner that mothers can. The primary concern that courts in Ontario will consider is determining which parent can properly provide for the child’s best interests.

What is in the best interests of the children?

Section 24 of the Children’s Law Reform Act lists several factors a court should consider when assessing what the best interests of the child are, including:

a)  The love, affection and emotional ties between the child and the parent; 

b) The child’s views and preferences, if they can reasonably be ascertained;

c) The length of time the child has lived in a stable home environment;

d) The ability and willingness of each parent to provide the child with guidance and education, the necessities of life, and any special needs of the child;

e) The plan proposed for the child’s care and upbringing;

f) The permanence and stability of the family unit with which it is proposed that the child will live;

g) The ability of each parent to act as a parent; and

h) The familiar relationship between the child and each parent.

The mother has historically been the parent who satisfied most of these factors. More and more often, cases are coming before the court where the father is either a stay-at-home parent, a primary care provider, or at the very least an equal primary parent.

How do the family law courts interpret the best interests test?

In Velvet v Phillips, 2010 ONSC 5596, the father was caring for the children at the time and was ultimately granted sole decision-making responsibility (custody) of the children. The court considered the degree of involvement both parents had in the children’s lives and found that the father was more concerned about their medical needs and performance in school, among other things.

In L.B. v P.E., 2021 ONCJ 114, the court decided a father had failed to provide adequate support for his children after findings of family violence and troubling patterns of behaviour. In this circumstance, the court found a power imbalance between the parties as the father was controlling and coercive. Any allocation of decision-making responsibility to the father would run too high a risk of exposing the mother and child to family violence and escalated conflict. 

The law does not differentiate between married and unmarried fathers. Single fathers are also entitled to decision making responsibility and care of the child. The fact that a father is single is irrelevant, just as it is with a single mother. Overall, the courts appear to consider the behaviour of both parents as well as their ability to care for the children’s needs. The courts acknowledge that children’s best interests are served by maximizing the involvement of both parents in decision-making and appropriate parenting time.  

Would you benefit from speaking to a lawyer with questions about decision making (custody) and parenting time (access)?

Jessica Bonnema practices with the Family Law department at Siskinds. If you are separating or are separated from your partner and are concerned about the children’s law reform act or fathers’ rights, please write to [email protected].

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