In T.L. v. D.S. [2019] OJ. No.5691, Sherr J. granted sole custody to the mother for reasons that sole custody has often been granted: that only one parent provides stability, continuity and structure (mom makes the children do their homework, go to school on time, lives in the family home where the children grew up etc).
The Children’s Law Reform Act, s.24 stipulates that a custody application shall be decided by asking what is in the child’s best interests.
The Act then sets out the particulars of what is involved in a best-interests analysis:
factor 1: the love, affection and emotional ties between the child and each parent.
Sherr J. dealt with this factor in one sentence:
32 The parties both spoke of their children with love and affection. They acknowledged that the children love the other parent.
Given the evidence in this case, that the mother was the provider of stability and was the defacto full-time parent (even though Dad had an access order, it was sporadically exercised), there was more that could have been said under this factor.
Sherr J. came to the sole custody result using the pedestrian facts: (failure to pay child support, criminal convictions, sporadic access, not returning children on time, one-bedroom apartment, quitting employment).
Best-interests factor 1 sets out three arguably separate concepts: love, affection and emotional ties. Applying L’Heureux Dube’s reasoning in Young v Young, T.L. v. D.S. would seem to be a case where the mother is the psychological parent.
In first describing what best interests of the child meant to the supreme court of Canada, L’Heureux Dube J. said something so universal that we are always at risk of ignoring it: She said that the child had a right ‘to a parent who will look after her best interests’. (para 25).
L’Heureux Dube J. said that the primary care giver ‘presumption explicitly restores the value of commitment and demonstrated ability to nurture as well as the continuing psychological parenting of the child.’ (para 79).
The judge in Makaryk v. Makaryk [1998] O.J. No.2069 asked a similar question: on a day to day basis, which parent would the child miss the most?
The emotional ties as primary caregiver led to sole custody in Jamal v Jamal 2015 CarsellOnt 12274 (ONSC).
Ransom v. Antonissen (2003), CarswellOnt 301 was a case where the defacto custody of the mother was reversed in favour of the father because a five year old boy expressed stronger emotional ties to the father.
While it seems that Ontario courts have sought to avoid ‘psychological parent’ (primary caregiver) analysis in recent years – the strongest statements coming in older cases (SM v CL (1987) 62 O.R(.2d)411; Catholic Children’s Aid Society of Metropolitan Toronto v HK (1988) 21 RFL (3d) 115) – It can be argued that it is this psychological parent primacy which speaks through the ‘emotional ties’ clause in s.24(1)(a)
Being the psychological parent, it would seem, constitutes a kind of trump card in best-interest analysis: a dominating factor against which few other considerations would overcome in importance.
Sherr J. did not need to specifically say it. His setting out of the facts established the same result.
