Does A Father Have Unequal Rights To Parent?

• Published date: 21 January 2022
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: Siskinds LLP
• Author: Jessica Bonnema

In family law, there is a long-held misconception that mothers will be favoured over fathers for decision-making responsibility (custody) and parenting time (access). Back in the 1950s, courts firmly held that young children should spend the majority of time with their mother in what was called the "tender years doctrine". This is no longer the case. As gender roles evolve and change, some women choose to develop long-term careers while some men choose to care for their children on a full-time basis. For some families, a balancing act is required as both parents maintain employment.

Do courts favour mothers in decision-making responsibility (custody) and parenting time (access) disputes?

Ultimately, mothers are not favoured over fathers during legal disputes regarding children. Social science research suggests children benefit from the active involvement of the father and mother.

Pursuant to the Children's Law Reform Act, both parents are equally entitled to decision-making responsibility and parenting time with the child. Courts understand that fathers are able to provide for their children in the same manner that mothers can. The primary concern that courts in Ontario will consider is determining which parent can properly provide for the child's best interests.

What is in the best interests of the children?

Section 24 of the Children's Law Reform Act lists several factors a court should consider when assessing what the best interests of the child are, including:

a) The love, affection and emotional ties between the child and the parent;

b) The child's views and preferences, if they can reasonably be ascertained;

c) The length of time the child has lived in a stable home environment;

d) The ability and willingness of each parent to provide the child with guidance and education, the necessities of life, and any special needs of the child;

e) The plan proposed for the child's care and upbringing;

f) The permanence and stability of the family unit with which it is proposed that the child will live;

g) The ability of each parent to act as a parent; and

h) The familiar relationship between the child and each parent.

The mother has historically been the parent who satisfied most of these factors. More and more...