Woman and upset man back to back

Do Women Have A Better Chance Of Winning Child Custody?

The concept of custody and particularly joint custody has changed substantially in Canadian courts. Custody no longer refers to the physical placement of children with one parent or another, rather it refers more to the responsibility parents have for the control and care of their children.

Joint custody has therefore come to represent the dual responsibility that parents have to cooperate and to participate in the major decisions that affect their children’s lives. This joint decision making can be exercised regardless of where the parents live or with whom the children reside. 

The physical placement of children with one parent or another is more accurately described today by the concept of parenting and in situations where the children are being parented in different households, one parent’s residence may be designated as their primary residence.

At law, mothers and fathers are to be treated equally when it comes to custody of children. There is no assumption that the father or the mother of a child is better fit to hold sole custody, absent other facts.

To say that joint custody or shared parenting is the “default” is misleading, however, as the unique facts of each case will determine the best custody and parenting arrangement. As noted above, the law supports the fact that there is nothing inherent in being male or female that makes either better suited to raise children, all other considerations being equal. Nothing is to be assumed about parents’ involvement in their children’s lives, financial stability, or any other matter, based on gender alone. The Courts will only consider the specific facts of each case.

Section 31 of the Children's Law Act R.S.N.L. 1990, c. 13, legislates a specific set of factors that a court must take into account in deciding custody and parenting arrangement. These factors can be paraphrased as follows:

  • the love, affection and emotional ties between the child and each person seeking custody;
  • the views and preferences of the child, where ascertainable;
  • the length of time the child has lived in a stable home environment;
  • the ability of each parent to provide the child with guidance, education, and the necessaries of life;
  • the general ability of each person seeking custody to behave as a parent;
  • plans proposed for the care and upbringing of the child;
  • the permanence/stability of the family unit with which it is proposed that the child will live; and
  • whether there is a blood relationship or adoption order with respect to the proposed custodian.

Challenges for the Modern Woman and Mother

The above being said, there are historical social trends that cause certain gender stereotypes to persist.

In the past, women may have held the upper hand in custody disputes given the fact that women more often stayed at home, worked as homemakers and generally spent more time with the children thereby building a stronger relationship with them. They were the primary caregivers of the children even before separation.

Dual-income households are much more common now, however, and women are just as likely as men to engage in full-time employment. Despite this, women continue to disproportionately take care of domestic chores including caring for children. This phenomenon is often referred to as “the second shift.”

Further, the notion persists that it is more ideal for a mother to take parental leave than a father despite the fact that both are equally entitled to take such leave. Because of this viewpoint, it is still often women who stall their careers, or pursue part-time work, in the course of raising a child. In doing so, those mothers often end up building a stronger relationship with their children which might put them at an advantage over fathers in the event of a custody and parenting dispute.

Women are sometimes accused of being emotionally manipulative, and intentionally seeking to weaken their children’s relationships with their fathers. While more parental alienation cases tend to involve accusations of mothers as the manipulative parent, the presumption that a mother is intentionally damaging a child’s bond with the father is sometimes abused by fathers who seek to make excuses for their own lack of involvement in their children’s lives.

Example of a Mother Being Granted Custody and the Underlying Reasons

A mother may be granted sole custody or primary residence where she spends more time with the children, is more actively involved in her children’s extracurricular activities and healthcare, generally takes more interest in their lives, and has a stable income and living situation to support the children.

In the decision Snook v Snook, 2009 NLTD 76 (CanLII), sole custody was awarded to the mother of a 13-year old boy. The court took into account that the mother had proven to be far more nurturing and involved in her son’s life during the times that he resided with her. Ms. Snook took a much more healthy approach to being involved in her son’s academic life. For example, she would check the school website to ensure the boy’s homework was up to date, and she stayed in regular contact with his teachers. By contrast, there was evidence that the father merely yelled at the boy about his poor performance. Among other facts in her favour, Ms. Snook also made efforts to present the court with a reasonable access plan for the father, while the father did not do the same.

Example of a Father Being Granted Custody and the Underlying Reasons

Even where both parents exhibit stability, good parenting skills, and a stable home in which to raise a child, the sheer amount of time that each parent has spent with the child may have serious weight in a custody or parenting decision. Sometimes, that parent is the father.

In Murphy v. Ridgeley, 2005 CanLII 78846 (NL SCTD), there was no prior court-ordered custody arrangement, but it was accepted that the 7-year old had spent the majority of the time in the previous two years with his father. The mother was not working at the time; she had surgery and was receiving Worker’s Compensation, but was hoping to get back to work soon, with modified duties. Custody became an issue because the father had been laid off from his job in Newfoundland and obtained new employment in Alberta.

Although the court found that both parents were essentially equally fit to raise the child, the fact that the boy had spent significantly more time with his father in the years prior to the hearing was a determinative factor. The court found that moving to Alberta with his father was in the child’s best interests, and the court ordered that the child be allowed to spend substantial time with his mother during the summer months.

Speak to Gittens & Associates, Child Custody Lawyers in St. Johns, Newfoundland

Issues of custody and access can be highly nuanced and complex. The child custody lawyers at our St. Johns, Newfoundland law firm are highly experienced in custody disputes. We understand how courts treat the relevant factors in custody matters, and can help you achieve the results that will be best for you and your children. Arrange for your consultation by calling 1-888-592-7171.
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