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Myths Surrounding A Father’s “Rights” to Custody

There is an unfounded belief that fathers do not have equal rights to custody. Do courts actually favor mothers over fathers for custody? Are single fathers also entitled to custody? Do fathers also have the right to claim spousal support? Let’s address these questions one at a time.   

Mothers are not favored over fathers during a custody dispute. This is one of the most common misconceptions surrounding a father’s rights to custody which of course, is false. Pursuant to the Children’s Law Reform Act, both parents are equally entitled to custody of the child. 

The primary consideration which the court will take into account when assessing custody is known as the “Best Interests of the Child” principle. The court will first and foremost try to determine which parent can properly provide for the child’s best interests. 

The Children’s Law Reform Act lists a number of factors courts should consider when assessing what the best interests of the child are, including;

  1. The love, affection and emotional ties between the child and the parent. 
  2. Whether the parent has been involved in the child’s care and upbringing.
  3. The ability and willingness of the parents to provide the child with guidance and education, the necessities of life and any special needs.
  4. The stability and permanence of the parent’s home where the children will live in. 
  5. The ability of the person to act as a person.

It is trite that the mother has historically been the parent who has generally fulfilled most of the factors listed above. Times have changed, however, courts recognize that where the concept of a stay-at-home father was once unheard of or an unpopular concept, the number of families with stay-at-home fathers are rising.

Courts understand that fathers are able to provide for and support their children in the same manner that society traditionally thought only women can. This understanding is a major contributing factor in shattering the myth that mothers will be favored over fathers for custody. 

Single fathers are entitled to custody. Another common but unfounded myth is that single fathers are not entitled to custody. The law does not differentiate between married and unmarried fathers. The Children’s Law Reform Act states that the merit of an application for custody of a child is to be determined on the basis of the best interest of the child. The fact that a father is single is irrelevant. The court will consider the factors listed above and assess how they will be addressed based on the father’s marital status.

Fathers have the right to claim spousal support. Entitlement to spousal support is not dependent on gender. The leading Supreme Court of Canada case in Bracklow v Bracklow states that there are three grounds to establish an entitlement to spousal support: 

  1. To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
  2. To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or 
  3. On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation

The Divorce Act further clarifies the objectives of spousal support, which are to; 

  1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 
  2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 

These are the factors that the court will assess when determining custody. So long as any of the entitlements and objectives of spousal support can be met, a father has an equal right to make a claim for support.  

Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law.   

For more information regarding fathers and custody, see our previous blog.