Recent case: Children are not property

hands on a book


Marshall v. Snow et al., 2022 ONSC 1687

This is a carefully thought-out decision by the Honourable Justice Kurz concerning what happens to a child when her primary caregiver passes away and the remaining family members “battle” over who “keeps” the child.

While this case does not exclusively focus on family violence, the decision clarifies that family members cannot unilaterally decide where children will live if the primary parent passes away. Justice Kurz stresses the importance of parties recognizing that “parenting of a child is not analogous to ownership of property, in which joint title to an asset passes to the other in the event of death” (para. 76).  The best interests of the child continue to be paramount in making decisions about where the child will ultimately live and who will have decision-making responsibility for them.

In this case, the Applicant father and the Respondent maternal grandparents were fighting over primary care and decision-making for an 11-year-old child, E. The relationship between the deceased mother and father was marked by the father’s abuse of the mother when they were together. This formed the context of the difficult relationship between the father and the maternal grandparents. E, along with her mother, while alive, had lived with her grandparents for most of her life.

Right before E’s mother died, the father sought primary care and sole decision-making responsibility over E. The father claimed that as the surviving joint parent, he should be able to solely assume all parenting rights for E. The father also claimed that the grandparents were alienating E from him and that without full or at least equal shared parenting rights, he would lose his relationship with E.

Justice Kurz found that it was in E’s best interest to enjoy the stability and continuity she experienced in her grandparents’ care and ultimately awarded the grandparents interim primary care of and final decision-making for the child.

In his analysis, Justice Kurz affirmed the court’s jurisdiction to make a broad range of parenting orders. Specifically:

–       The sole consideration for the determination of parenting decisions under the Divorce Act is the best interest of the child (para. 67)

–       The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her (para. 69 and 92)

In determining E’s best interest in accordance with the Divorce Act, Justice Kurz took into account:

1. The child’s need for stability: s. 16(3)(a);

  • In this case, E had lived with one or both of her grandparents for the majority of her life; both in New Brunswick and in Ontario (para. 83);
  • E only lived with her father on a fulltime basis for the first three years of her life – a period she likely does not remember (para. 84); and
  • The father’s contact with the child was at first intermittent and then regular but still secondary or even tertiary (para. 84).

2. The nature and strength of E’s relationship with the grandparents and the need to maintain the relationship through these traumatic times: s. 16(3)(b);

  • E had a need to maintain and deepen her relationship with her father, but this must occur on her time, not his.

3. The grandparents have been willing to try to work with the father: s. 16 (3)(c);

4. The history of care of the child shows that the grandparents were always a second set of parents for the child and that she spent a great deal of time in their care: s. 16(3)(d);

  • Even when E lived solely with her mother, she maintained a bedroom in her grandparents’ home. It was her second home. Her grandmother was effectively her second mother (para. 87)

5. The child’s views and preferences favour a continuation of her primary parenting by the grandparents: s 16(3)(e);

  • While she was old enough to be aware and to have a say (although not a vote) in where she would live, there was no dispute that she did not wish to be taken away from her grandparents’ primary care (para. 87)

6. The grandparents are better able to meet E’s emotional needs: s. 16(3)(g)(h);

  • The father did not comprehend the depths of his daughter’s loss at the death of her primary caregiver (para. 91)

7. Just before the motion, the parties agreed to mediation, which is a positive step: s 16(3)(i);

8. Justice Kurz did not consider the history of family violence, as defined by the Divorce Act, by the father against the mother, as there was no evidence put forth on the effect it had on the child: s. 16(3)(j)

While the grandparents were the more successful party on the motion, Justice Kurz reminded the parties of the importance of both parties finding ways to make peace with each other in light of the loss that E experienced at such a young age. He offered that their parenting dispute could be resolved through negotiation and mediation rather than further litigation.