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With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

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With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

In 2015, the parents of a 5-year-old boy separated, and agreed to an arrangement involving joint custody, as well as shared parenting.  This agreement was brought before the court for its endorsement in a court order.

In the context of the mother’s bid to relocate the boy to another city (which was the subject of a prior blog a narrow legal question arose:  If there is “joint custody”, together with “shared parenting”, can there still be a “primary caregiver”?

The question is important because under the family law principles relating to mobility – meaning the ability of a parent to move elsewhere with the child – the decisions of the “primary caregiver” are given added weight by a court in evaluating the plan to relocate.  (This principle will be the subject of an upcoming Blog).  But the question is arguably muddy when, as in this case, the parents have agreed to a joint custody and shared parenting model.

The Ontario Court of Appeal cleared up any doubt:  In rejecting the motion judge’s conclusion that in such cases there can no “primary caregiver” in law, the three-member panel of the Court wrote:

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother’s evidence, but from the father’s admission on his …affidavit, his answers in cross-examination, and affidavits from two of the father’s aunts.

Accordingly, with the mother designated as having the primary caregiver role, the court gave her reasons for moving the child special consideration, relative to other factors including the father’s objection to the plan.

For the full text of the decision, see:

Porter v. Bryan

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 RussellAlexander.com