Both parties applied for exclusive interim possession of the matrimonial home and interim custody of the children. The wife also sought spousal and child support. The parties were married in 1977 and had three children aged 16, 13 and 7. The wife maintained that the parties had separated in 1985 but continued to live in the matrimonial home whereas the husband maintained they were presenting themselves as husband and wife until 1993. The wife unilaterally changed the residence of the children from the matrimonial home to her sister's townhouse which became overcrowded. Her plan was to remain there for the foreseeable future. Prior to moving the children, the wife was often absent from the matrimonial home where she found it intolerable to remain.
- Who should be granted interim custody of the children and possession of the matrimonial home?
Interim custody and possession granted to Mr. Foley.
Justice Goodfellow identifies a number of factors which must be considered when analysing what would be in the best interests of a child:
- statutory direction, i.e. ss. 16(8), 16(9), 17(5) and 17(6) of the Divorce Act;
- the physical environment;
- matters of discipline;
- role models for the children;
- the wishes of the children (the weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved - that question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of a preference);
- religious and spiritual guidance;
- assistance of experts, such as social workers, psychologists, etc.
- time availability of a parent for a child;
- the cultural development of a child;
- the physical and character development of the child;
- the emotional support to assist in a child developing self esteem and confidence;
- the financial contribution to the welfare of a child;
- the support of an extended family;
- the willingness of a parent to facilitate contact with the other parent re: ss. 16(10) and 17(9);
- the interim and long range plan for the welfare of the children;
- the financial consequences of custody; and
- any other relevant factors.
In the case at bar, Mrs. Foley previously left the house for long periods of time - an implicit acknowledgement of the parenting abilities of Mr. Foley. The current living arrangements were not in the best interests of the children (they were sleeping in the living room) and Mr. Foley was most willing to facilitate access to the children. In light of all the factors, Goodfellow concludes that it is in the best interests of the children to give interim possession and custody to Mr. Foley.
- Statement of important factors when analysing the best interests of a child/children.
- Unilateral changes in circumstances are only acceptable when it is "constructive departure", i.e. forced out of the matrimonial home.