Who Gets Custody of a Child When Parents Live in Separate Countries?


By Written on behalf of Campbell Bader LLP

In a recent family law decision, an Ontario court had to decide where a child with dual American-Canadian citizenship should live after his two mothers separated and decided to live in separate countries.

What Happened?

This case centred on a 4-year old boy, Rory, and his two mothers, Sarah and Jessica.

Sarah and Jessica were married in Canada in July 2014 and lived in Niagara Falls, Ontario. They had also undergone a commitment ceremony in the United States, however, that ceremony had no legal effect. They decided to have a child and Jessica was impregnated with sperm from an anonymous donor. The child was born on November 19, 2014 in Buffalo, New York. The mothers had different reasons for wanting their son to be born in the United States; Sarah claimed it was for health coverage issues related to the mothers’ employment and Jessica stated that it was important to her that their son have American citizenship. Rory is a dual citizen of Canada and the United States.

After their son was born in the United States, they returned to live in Canada until they separated. Sarah stated that the separation occurred in 2016, while Jessica claimed that they only legally separated in 2017, when she left the matrimonial home and moved back to the United States. Sarah continued to live in Niagara Falls, Ontario and Jessica lived in Niagara Falls, New York.

After the separation, the mothers agreed to equal sharing of parenting time, with Sarah having Rory from 4:30 pm on Friday until 7:30 am on Tuesday, and with Jessica having him the balance of the week.  

However, because of the international border, it was no longer practical for Rory to continue the schedule once he began attending school full-time. He would have to have primary residency with one parent and attend school either in the United States or Canada when he began school in September 2019. 

Each mother asked for sole custody of Rory and for an order that Rory attend school in September 2019 in their respective countries. Primary residence would follow such an order.

The Decision

At the outset, the court stated:

“From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him. Both mothers acknowledge that the other mother only wants what is best for Rory.

This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.”

The court explained that such decisions are governed by both the Divorce Act and the Children’s Law Reform Act (the “CLRA”). The Divorce Act directs a court to take into consideration the best interest of the child by reference to the condition, means, needs and other circumstances of the child. The CLRA states that custody or access should be decided based upon the best interests of the child. Additionally,the goal of maximum contact with each parent is a mandatory consideration under the Divorce Act. Finally, the court cited s. 8 of the CLRA, which states:

“8(1) If the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child.

(2) if the birth parent of a child conceived through insemination by a sperm donor had a spouse at the time of the child’s conception, spouse is, and shall be recognized in law to be, a parent of the child.”

Thus, by law, both mothers had an equal right to custody.

After reviewing all the testimony and evidence presented at trial, the court concluded:

“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.

As I have also found, it is clear that joint custody is not an option. I must determine sole custody, which in these circumstances, is inextricably connected to primary residence and location of his education.  

After weighing the above factors, I find that it is in Rory’s best interest that sole custody be awarded to Sarah and that Rory’s primary residence be with her. Rory will attend school in September in the Niagara Region of Ontario.”

The court set out a detailed schedule for Jessica’s parenting time and access, as well as ordering Jessica to pay child support.

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.


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