Does my spouse’s affair mean that I automatically be awarded custody of my Children?
No. “Past Conduct” will only be taken into consideration where a court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. Infidelity is often seen to be a symptom of an otherwise unhealthy relationship and not a reflection of the “unfaithful” spouses ability to parent.
The only consideration in determining a claim for custody or access to a child is the best interests of that child. Determining a child’s best interests is ultimately decided by balancing a number of factors, and taking into account the entirety of the Child’s needs and circumstances. Section 24 of the Children’s Law Reform Act has a list of factors that the decision maker may consider: these include the Child’s emotional ties to those living with the child, the child’s own views if the child is of an age where those can be reasonably ascertained, the ability of each parent to provide the necessities of life, and each parent’s plan for the child. The list at section 24 of the CLRA is not exhaustive and a court will consider all of the factors surrounding a child’s upbringing, including historical parenting roles, when making a determination as to custody.
In considering the best interests of a child, section 16 of the Divorce Act also prescribes that the court must give effect to the principle that a child of the marriage should have as much contact with each spouse as it consistent with that child’s best interests. For this reason, there must be consideration by a court, of the willingness of the parent seeking custody to ensure that the child has maximum contact with the other parent. This factor can be particularly relevant to parents who are separating, due in part, to infidelity.
Infidelity tends to engender significant anger in the “faithful” spouse, and the response is sometimes to withhold access between the children and the “unfaithful” spouse in order to punish the other parent . If this is the only reason for withholding access between children and an otherwise good parent, then this will almost certainly backfire. Because the legislation is clear that generally children should have as much contact with each of their parents as possible, a parent who is withholding access will often be seem in the court’s eyes as “the bad guy” because they are putting their own anger ahead of what is best for their children. That parent may actually lose custody of their children if the behavior continues. That said, there may be other reasons why access should be limited between parent and child. If you think you may be limiting access out of anger toward your former spouse or if you are concerned about your former spouse’s ability to parent your children on their own, you should contact a lawyer to discuss your various options.
For further information or assistance in regards to Family Law Matters, Divorce Mediation, Child Custody or Access matter, please contact one of our Toronto Family Lawyers of Devry Smith Frank LLP, listed on our website by clicking on their name.