How Relevant to Custody Are Father’s Plans to Promote Kids’ Native Heritage?
In a case called Montour v. Montour, the parents had originally met in California and then moved to Ontario where they had two children together. When they separated several years later, custody of the children became a key issue: the mother wanted full-time custody and proposed to move back to California, where she wanted to have a “fresh start”; the father wanted them to stay in Ontario.
But the father’s custody plan had a further complicating element for the court to consider: He was a proud Mohawk Indian, and proposed that the children should live with him full-time on a Native Reserve. Under this plan – and aside from access visits with the mother (which he preferred would take place nearby) – the children’s exposure to non-Native culture would be limited: they would attend daycare and school where the Mohawk language was taught, and would be raised in a close community of Mohawk individuals. They would be entitled to all the health and education benefits on the Reserve.
In deciding on custody, the court considered all the circumstances. First of all, it ruled out joint custody as an option in light of the divergent plans of each parent, not to mention the large geographical distance separating them.
Next, the court assessed the impact and weight to be given to the father’s proposal to foster the children’s Native heritage. While acknowledging that it was an important consideration, it could not be the sole determining factor on the custody issue, the court found. On this aspect, the mother’s willingness to promote the father’s culture and heritage could be taken into account as well. (The father, incidentally, steadfastly refused to reciprocate in this regard).
In short, the father’s goal to promote the children’s heritage was only one of many features to be considered in his proposed overall plan. Among the others, for example, was the father’s current lack of employment, his receipt of social benefits through his Band office, and his plan to arrange daycare through friends, family and community resources. The court also faulted the father implicitly by pointing out that at no time during the marriage did he feel motivated to seek employment income (which was in contrast to his work ethic prior to the relationship).
The court therefore awarded custody to the mother, pointing out that she had been the primary caregiver and had a greater ability to nurture the children. She had remained at home to care for the children and was involved in their school-related and recreational activities. To give her full custody would more closely parallel the pre-separation arrangement they had previously had.
The mother was allowed to move with the children to California, with the father being allowed specified summertime and other access.
For the full text of the decision, see:
Montour v. Montour, 1994 CarswellOnt 2086 (Ont. Prov. Div.)