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Move away from highly charged language welcome: Chaiton-Murray

An Ontario Court of Appeal decision confirming trial judges do not have to make a finding of custody when asked, as it promotes an adversarial approach, is in line with long-held views across the family law bar, says Toronto family lawyer Erin Chaiton-Murray.

M v. F., 2015 ONCA 277 (CanLII) highlights the fact that parties tend to misuse the words “custody” and “access,” says Chaiton-Murray, as most don’t have a proper understanding of the terms.

“I think that many people, before they are really involved in a family law dispute, have preconceived ideas about what custody and access mean, and they don’t always line up with what the actual definition is, in particular around custody,” she tells “People come in all the time saying, ‘I want full custody,’ but what they really mean is they want the child living with them primarily. Custody is really about decision-making and not where a child lives.”

The case deals with a dispute between a Toronto couple over whether their son could spend nights with his father, who the mother alleged had been violent toward her. She argued that an overnight stay would put the six-year-old at risk.

The trial judge concluded that the father could have overnight stays with his son, as suggested in a parenting plan created by a child psychologist involved in the case. The judge felt the child’s best interests would be served by adopting the psychologist’s plan, and the mother appealed.

The OCA agreed with the trial judge and dismissed the appeal, awarding costs against the mother.

While the sleepover dispute was the core issue in the case, it raised several other questions, including whether a trial judge is required to make a finding of custody when asked.

“The Ontario legislation does not require the trial judge to make an order for custody,” says the appeal ruling, referring to s. 28(1)(a) of the Children’s Law Reform Act.

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of ‘custody’ and ‘access.’ These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles has long been recognized,” states the decision.

“It was therefore open to the trial judge to adopt the ‘parenting plan’ proposed by the assessor without awarding ‘custody.’ It was also in keeping with the well-recognized view that the word ‘custody’ denotes ‘winner’ so consequently the other parent is the ‘loser’ and this syndrome is not in the best interests of the child,” it continues.

Chaiton-Murray, Senior Associate with Fogelman Law, welcomes a move away from the contentious language.

“If there’s no final language around a primary custodial parent or any reference to that, it sort of takes away that idea of one person feeling they won on that issue, or that they’re the more important parent or the victor at the end of a long battle,” says Chaiton-Murray, who did not act in the case and commented on it generally.

“I think part of the problem with the terminology is people don’t always understand it or they have the wrong interpretation of what something means, so if what we’re talking about is decision-making, why don’t we actually use terms to describe what is happening and call it shared decision-making or primary decision-making?”

Instead of saying “primary residence,” says Chaiton-Murray, you could simply say “the child has two homes, one with each parent, and spends time with them in accordance with the following schedule.

“The schedule isn’t always equal, but it takes away some of that primary – better parent, secondary – worse parent – mentality where the impression may be that one parent gets to make all the decisions and the other has to suck it up,” she says.

As with most issues in family law, Chaiton-Murray says the debate around the terminology comes down to the best interests of the children involved.

“I think if there’s a parent who feels they have either won or lost it will in some way impact their interactions with the child,” she says. “A lot of parents do unfortunately have a hard time keeping adult issues as adult issues only. I imagine children of a certain age would pick up on that. I don’t think it's a good thing for the child to view their parents as unequal in terms of their relationship.

“At the end of the day, whether they spend equal time or not with their parents, the child should have an equally important relationship with each parent,” says Chaiton-Murray. “The more parents think they ‘won,’ the more it takes away from their ability to have an equal relationship.”

Of course, says Chaiton-Murray, there are circumstances where it is in a child’s best interest to have one parent making decisions, but in general, “children do better when they perceive their parents to be equal and loving parents.”

The movement away from the terms “custody” and “access” has been present in the family law bar for some time, she says, noting mental health professionals have also echoed concerns over the use of the words.

“As we interact with clients as lawyers and educate them about what these different terms mean, maybe that’s where there’s an opportunity to say instead of focusing on custody, let’s break it down to what you’re really looking for and what we can call that,” says Chaiton-Murray.

Another issue raised in M. v. F. relates to the admission of critique evidence. After the child psychologist involved in the case completed assessment reports and proposed a comprehensive parenting plan, the wife retained another doctor to conduct a critique of the work that had been done.

The trial judge preferred the original doctor’s reports, as he “had known the child and the family for nearly all of the child’s life.” The judge “placed little weight” on the evidence of the critiquing doctor, “who never met the child.”

The wife submitted that the judge should have placed more weight on the critique evidence, but the OCA disagreed.

“I too support the view that critique evidence is rarely appropriate,” Justice Mary Lou Benotto wrote on behalf of the court, referring to previous case law on the issue. “It generally – as here – has little probative value, adds expense and risks elevating the animosity between the parties.”

The issue, as Chaiton-Murray sees it, is connected to the fact that the first expert had spent so much time with the child, where the second expert had not.

“There wasn’t the same depth to the work, and with no direct contact or observation of the child, how can it be helpful,” she says, noting she has not read either report. “When talking about children I can’t see how having a second expert report criticizing the first one is that useful, unless the second person has had all the same access to the child and the data to back it up in the same way.”

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