When it comes to custody battles, courts are often presented with difficult decisions. However in some circumstances – and because it is always the best interests of the child that directs the outcome – the question of who should get custody of a child is more of a “no brainer”. A late-August, 2011 Ontario court decision called Booth v. Roy is this latter kind of situation: in this case the grandparents won out over the parents for temporary custody of the child.
The dispute revolved around a 7-year-old boy, whose parents had had a volatile relationship over the course of their 13 years together. Their union had been punctuated by drug and alcohol abuse: the father was an alcoholic, the mother smoked marijuana once a day, and the boy had seen both parents intoxicated to the point of unconsciousness. The mother had anger management issues and would frequently kick the father out of the house, forcing him to go live with friends or his parents temporarily. The parents fought constantly in front of the boy, and police visits to the home were a regular occurrence.
They finally separated in June of 2011, after the father was charged with assaulting the mother while intoxicated.
In stark contrast to this tumultuous environment, the boy’s paternal grandparents offered a stable lifestyle had had very extensive access to him from birth onwards, until the mother cut off their access entirely after she and the father separated. As such, and in light of the parents’ inability to properly care for the boy, the grandparents applied to the court for an order giving them temporary custody of him.
In considering whether to grant the order, the court heard evidence of the grandparents’ significant and extensive involvement in the child’s life. Although the grandparents were in their 60s (and had been married for 44 years) they had essentially taken over most aspects of the child’s care because his mother had had trouble coping with caring for him.
For one thing, the boy had been in the grandparents’ care at least three days a week since birth. Gradually the grandmother also provided for his social and emotional development as appropriate: when he was a toddler, she took him to play groups twice a week and to other programs so that he could interact with other children. When he was three, she enrolled him in nursery school, drove him there, and participated in lieu of his parents in the school’s co-operative program. When he was four, she drove him to junior kindergarten in the mornings, and stayed there with him three mornings a week for the entire year, to help ease his severe separation anxiety. She also volunteered at his school. The next year, she took him to kindergarden in the mornings, and continued to care for him in the afternoons. In the summers, both grandparents continued with the three-day-a-week schedule, but cared for him full days. The grandparents also enrolled and paid for the child to be involved in various activities such as hockey, soccer, power skating, and swimming lessons.
Notably, the boy’s grandparents also demonstrated that their overriding concern for his best interests and welfare was impartial: when they became concerned about the father’s (i.e. their own son’s) drinking problem, they contacted the Children’s Aid Society. (They had done the same thing when the boy was three months old, because they were concerned about the mother’s ability to care for him at the time.)
Finally, the court heard that when the child had to be returned to his mother, he sometimes physically resisted leaving his grandparents’ care. He had also expressed a desire to live with them permanently, a decision which his father supported. The mother, in contrast, characterized the grandparents’ involvement as “interference”, but had no feasible alternative plan for his care. In fact at the time of the court hearing she was living in a women’s shelter.
In light of these facts, and in keeping with the provisions of the Ontario Children’s Law Reform Act, which allows a parent “or any other person” to apply for custody of a child, the court granted the grandparents’ request on a temporary basis until a full trial of the matter could be heard. It found that it would be in the boy’s best interests to live with the grandparents full-time, because they had been his only source of constancy and stability throughout his otherwise-turbulent life. Indeed, without their involvement, he would not have been fed, clothed, groomed or socialized properly.
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 www.RussellAlexander.com
For the full text of the decision, see: Booth v. Ray, 2011 ONSC 4916 http://canlii.ca/s/6l316