Mom with school aged boy

Stoughton v O’Ney 2019 ONSC 1531: This case is interesting primarily because, in his use of the best interests of the child test in the Children’s Law Reform Act, Justice Edwards meticulously examines and comments on each of the criteria.

Sarah Stoughton and Jessica O’Ney were married and have a son who, at the time of the proceeding was 4 years old. Family violence was not an issue, and Justice Edwards states a number of times that both women were good mothers focused on the best interests of their son.

When they separated, the family had been living in Niagara Falls, Canada, although Jessica was an American and returned to the U.S. when the marriage ended. She lived in Niagara Falls, New York, so the two parents were able to and did share parenting responsibility for their son equally, since the two cities are very close to one another.

However, when the child reached school age, this arrangement was no longer feasible, and the parents could not agree on a living arrangement for him. The court action was initiated by Sarah, with both parents seeking sole custody of their son.

After hearing extensive evidence from both parents as well as many witnesses for each of them, Justice Edwards concluded that Sarah’s evidence was more credible. He then reviewed each of the best interests of the child criteria set out in section 24(2) of the Family Law Act, beginning at paragraph 203 of the decision. His reasoning is worth reading and will help you in supporting women put the appropriate evidence together for their cases.

Of particular note, Justice Edwards, in considering the maximum contact provision, notes his concern that, if Jessica were granted sole custody and primary residence, she would cut off contact between the child and Sarah.

In his decision, he notes:

“As I have already stated, Rory has two loving mothers. My order as to custody is not a finding that the non-custodial mother is a bad mother. Rather, I must assess all of the factors and conclude what is in Rory’s best interests.”

He decides that joint custody is not appropriate, and awards sole custody and primary residence to Sarah, with extensive access to Jessica.