Rigillo v. Rigillo was a child custody/access appeal decision. At trial the judge limited the father’s parenting time to the minimal amount that he had secured under a without prejudice temporary order where the mother was the primary caregiver. The Ontario Court of Appeal held that it is mandatory for a court to consider the MPT principle.
The trial judge found as facts that prior to separation:
1. the child had a loving and strong emotional tie with both parents;
2. the parents “were a team”.
3. the parents had effectively parented;
4. the father had made a contribution to raising the child.
Take note: These four bullet points should not be overly onerous for any adequate parent to establish.
The Ontario Court of Appeal found there to be three legal errors in the Superior Court:
1. It is an error in law that under these circumstances the trial judge did not avert to the MPT principle.
2. The trial judge relied upon a without prejudice interim order.
3. Assigning all decision-making authority to the mother was also an error. Even though the case was characterized as high conflict, depriving the father of participation in some elements of decision making was wrong. The court stated: “Decision-making authority assists in ensuring that a parent’s relationship with his or her child is not marginalized.”
At a further hearing a short time after the release of this appellate decision, the court allocated decision making in distinct areas to the parents.
The appeal court also increased the father’s time but kept in mind the one-hour drive distance between dad’s home and the school (in mom’s catchment area). He went from three overnights out of 14 to five. With the other time he was given, it was not 50/50 but it was still a good amount of parenting time.
It is a shame that the father had to incur such a huge expense simply to get some decent parenting time.
Here are what I see as some significant takeaways from this case to be applied to child custody access cases (parenting time cases):
1. Plead your custody/access case to focus on your important role as a parent. In other words, try not to simply say how terrible the other parent was as a person.
2. Show how more time benefits your particular child.
3. Show how being entrusted with a role in decision making, even if only within defined areas, maximizes your meaningful involvement as a parent.
4. Give the judge this case as a precedent.