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Leading the “Right” Evidence in Your Custody – Access Case

C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126, 2010 NSSC 85 (N.S. S.C. Mar 05, 2010)


Madam Justice Beryl MacDonald of the Nova Scotia Supreme Court has delivered reasons for judgment in the case of C. v. C. that justify the attention of lawyers and self represented litigants alike. This decision contains sage words of wisdom with respect to how to assess credibility of witnesses, how we should approach the “best interests of the child” test, what is the real significance of “primary care parent”, what sort of evidence one should present to the court re “best interests”, the effect of domestic violence allegations, abuse allegations, what does “shared parenting” mean, what does “joint custody” mean and when should it be ordered, and the importance of past conflict. With respect to each and every issue that the judge addresses, it is this writer’s opinion that Her Honour was on the right and sensible side each and every time (or at least until such time as the legislation changes and we have a rebuttable presumption in favour of equal shared parenting).


In this case comment, we will review the sort of evidence that one should lead at trial as per the judge’s view. We will extrapolate to motions as well since the type of evidence to present at motions should be no different.

Justice MacDonald approaches the “best interests” test sensibly. Quoting another case, she states:

The “best interests” of the child is regarded as an all embracing concept.
It encompasses the physical, emotional, intellectual, and moral well being of
the child. The court must look not only at the child’s day to day needs but
also to his or her longer term growth and development …

She then cites a Nova Scotia Court of Appeal case where the emphasis appeared to be mistakenly placed upon the more mundane and technical aspects of parenting. Her Honour correctly decried an undue emphasis on such factors given that historically these roles were fulfilled by the mother and they are tasks that can easily be learned by the other partner. Her Honour wrote:

12 The decisions and activities described by Justice Roscoe are critical
to a child’s well being and may be overlooked by a parent who has never
been required to make these decisions or carry out these activities.
However, because the primary care parent in a relationship was frequently
the female partner, this analysis has come under attack particularly from
fathers. The division of labour within a family often evolves to place the
female partner in the role of primary care parent. It is easier to have one
person attending to many of the above described parenting functions. But
these are functions the other parent can learn to perform. It may be more
important to examine the nature and quality of the child’s relationship with
each of his or her parents than it is to merely add up the number of
parenting tasks performed by each and assume the parent who preforms
more of these tasks is the “primary care parent” who should therefore have
day to day care of the child. [writer’s emphasis added]

Justice MacDonald then tells us that it would be “more illuminating” to examine the following factors when coming to a decision with respect to how we entrust custodial roles to parents:

• What does the parent know about child development and is there evidence indicating what is suggested to be “known” has been or will be put into practice?

• Is there a good temperamental match between the child and the parent? A freewheeling, risk taking child may not thrive well in the primary care of a fearful, restrictive parent.

• Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?

• Does the child respond to the parent’s attempts to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid? How does that parent give comfort and guidance to the child?

• Is the parent emphatic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification of his or her own personal needs through the child?

• Can the parent examine the proposed parenting plan through the child’s eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?

• Has the parent made changes in his or her life or behaviour to meet the child’s needs, or is he or she prepared to do so for the welfare of the child?

As in many cases that this writer has seen where he picks up a file from another lawyer or from a self represented litigant, the judge laments that she had “very little information upon which to assess the quality of the relationships between these children and their parents”.


The judge correctly juxtaposed the inconsistency of the mother’s stated positions. You cannot on the one hand ‘trash’ the father and then say that you want joint custody. The two positions are simply not consistent. The judge wrote:

15 A significant portion of the wife’s evidence was devoted to portraying
the husband as a domineering, controlling and therefore abusive person. Nevertheless she has “concluded that it would be best for the children at
this time for (the husband) and I to have a shared parenting relationship in
which, when either of us is not sailing offshore, the children are in our care
for equal amounts of time” . This suggests that whatever occurred between
the parties has not caused the wife concern about the husband’s ability to appropriately parent these children. Therefore his allegedly abusive behaviour toward her should have no relevance to the appropriate parenting plan for
these children. If a party expects a court to believe that abuse matters then
the position taken should be indicative of the abuse suffered. A parent truly concerned about the best interest of his or her children would not permit them
to be parented by person who is abusive of intimate partners. If domestic
violence is occurring this issue must be taken seriously and must not used as a
tactic to engage judicial sympathy.


What do we see in affidavits that are presented in support of interim custody and access motions? We see wild allegations about abuse (usually unsubstantiated). We see a parent digging up historical grievances that while they could be valid, they have precious little connection with a parent’s current ability to parent effectively. This writer echoes Justice MacDonald’s frustration with the paucity of truly relevant evidence to custody and access, to “best interests”. Parents seem to want the court to vindicate them, to tell them that mom is good and dad is bad as a person, or vice versa. Judges do not want and neither should they try to ascribe blame for the unfortunate breakdown of a relationship. What judges need to focus on is how in tune is the parent with the needs of this particular child? How has this person parented in the past and what parenting plan does (s)he have for the future.

The family law litigant (and his/her lawyer) who is able to rise above the petty allegations that are often irrelevant in any event and who truly focus on the needs of the particular child will surely strike a responsive chord with the court.

Introducing the right sort of evidence on motions (and at trials) maximizes the chances of success. Even more importantly, taking the time to concentrate on the needs of your child and your ability to meet those needs, may serve to diffuse conflict. If both parents and their lawyers have their sights correctly aligned, we would likely avoid the costly battles that characterize many family law cases. But if mutual cooperation and focus is beyond the reach of both and if you are the only parent in the relationship who is child focused, then you are maximizing the chances that your custody claim will be successful.

May 13, 2010

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