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Should Deceased Mother’s New Partner Win Custody Over Kids’ Biological Father?

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Should Deceased Mother’s New Partner Win Custody Over Kids’ Biological Father?

The recent decision in Van v. Shilletto features an unusual custody contest between a biological parent on the one hand, and the new partner of now-deceased other parent, on the other.

The background facts were a little unusual, too: The parents of two children had divorced and each parent was living with a new partner. In the mother’s case, the new partner was a patron at the restaurant where she worked. In the father’s case, the “new” partner was actually his first wife – who happened to be the mother’s older sister.

(To explain: The father and mother were both from Vietnam. The father had been married before – to the mother’s older sister, whom he divorced after moving to Canada. After that divorce, the father returned to Vietnam to marry the mother, who joined him in Canada two years later. But when she arrived, she was dismayed to learn that he was back living with his first wife, i.e. the mother’s own older sister. Although the mother was not pleased, this living situation – which involved both women having separate sections of the house – apparently continued throughout their marriage until the mother moved out several years later).

In any event, when the children’s mother later died of cancer, her will stipulated that her surviving new partner was to be the guardian and have custody of the children, and that they were to spend all day each Saturday with the father as they had been doing. The children themselves were on-board with this plan, and neither of them expressed an interest in spending more time with their father than had been the case until now. In fact, at times each of the children expressed an unwillingness to see their father at all, and pronounced the Saturdays they currently spent with him to be “boring”.

Nonetheless, the father brought a court application for custody, which the new partner countered with a custody application of his own.

The court considered the situation, starting with the fact that the mother’s new partner had made considerable effort to get along with the father, had cared for the children and the mother during her battle with cancer, and had been an important and positive influence in their lives for the past few years.

In contrast, the father had shown that he was not sensitive to the children’s emotional needs: After the mother’s death, for example, he denigrated her in front of the children, calling her “mental” and a “bad woman”. He routinely made negative remarks about the new partner as well, calling him “evil” and accusing him for breaking up the marriage and “stealing” the children. This was despite the fact that the new partner had been providing love and security to the children both before and after the mother’s traumatic death.

The court observed that a child’s biological parentage is not determinative in a custody dispute; rather, it is one of several factors, including the wishes of the children themselves, which was to be given considerable weight.
In this case, it was not in the children’s best interest to be in their father’s custody. The application of the mother’s new partner was granted, with the father being given access on the same Saturdays-only schedule as before.

For the full text of the decision, see:

Van v. Shilletto, 2014 ONCJ 104 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.