Child Access: A Child's Perspective

Lisa and Adrian Berry were married in 2000. Like the approximate 4 in 10 first marriages that end in divorce in Canada, the Berry's called it quits in 2010.

At the time of separation the couple, who lived in Toronto, had a 3 year old son afflicted with Noonan's Syndrome. The infant had already undergone surgeries and faced the prospect of further surgeries as he grew older.

The good news, in this case, was that both parents recognized each other as loving parents who provided great care to their son. Since separating, the child had lived more or less equally with each parent.

Not only that but they had absolutely no other issues ... not support, not property... Nothing. It was the separation made in heaven...If only!

When Lisa Berry sued for divorce in 2010, she asked the Judge to grant her sole custody of her son and permission to permanently move with him from Toronto to Kingston. The result of this, of course, would be to severely reduce the time that the father, Adrian, could spend with his son.

Lisa raised two points to support her request:

The first was that her husband's parents, who were very involved in their grandson's young life, failed "to respect the privacy and boundaries that a husband and a wife have the right to expect". Lisa found their presence "controlling, suffocating and overwhelming".

She is not the first spouse to complain about the in-laws. She will not be the last.

Lisa also pointed out that she had no family support in Toronto and couldn't parent as effectively in Toronto as she could in Kingston where she would have the support of her sister and another friend.

The trial Judge, moved by Lisa's plight, actually decided that Lisa and her son could move to Kingston. Do you agree? For the record, the Court of Appeal did not.

Ontario's top Court reminded us all that when it comes to custody, it is not about the parent. It is always, first and foremost ... about the child ... about the best interests of the child.

The Court reminded us that "...while being with a happy parent has a positive effect on a child, the legal test focuses on maximizing contact with both parents and minimizing disruption (travelling back and forth from Toronto to Kingston) to the child. In this case the child would benefit from the loving care of both parents sharing their time equally with the child.

Lessons to be learned?

1) It is reassuring to know that if a trial Judge gets it wrong, there is somewhere to go, to finally get it right, in this case the Court of Appeal, and

2) It is reassuring to know that in Ontario, Courts recognize the primacy of children. There are places in this world where such a principal does not exist...yet.

The Ross Firm has lawyers experienced in complex custody matters.

Give us a call.

Talk to us.

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