Caitlin, born February 12, 2005, was just born when her parents, Joseph Macdonald (“MacDonald”) and Penny Tizard (“Tizard”) began their long, complicated custody battle. The trial decision was made in 2008, when Caitlin was three years old.
The interesting point of this case is how Justice Aitkin essentially rejected the wishes and decisions of the parents in favour of the best interests of Caitlin. The mother had opted for joint custody of Caitlin and the father had opted for sole custody of Caitlin. Yet, Justice Aitkin concluded that the best arrangement for Caitlin was neither of the above but rather to award sole custody of Caitlin to her mother.
The facts of this case are long and specific. In summary, Justice Aitkin was concerned about the father’s approval of corporal punishment and his rigid and intolerant approach. The father’s family was highly religious and very critical of Tizard. On the other hand, there was no evidence that Tizard criticized MacDonald or his family in the presence of Caitlin. Due to the fact that this was a high-conflict case, Justice Aitkin concluded that the level of communication that was required for joint custody to be successful was not in the evidence. He recognized that cooperation is necessary for joint custody to work and non-cooperation was the spirit of this case. Thus, although both parents had the ability to provide Caitlin with guidance and love joint custody was not an option. Justice Aitkin also feared that MacDonald and his family would damage the relationship between Caitlin and her mother by speaking negatively about her in Caitlin’s presence. Thus, he decided to award sole custody to Tizard with the child to live with her, with access to MacDonald.
This case illustrates the strength of the best interests of the child principle. Indeed, the best interests of Caitlin trumped both the desires and wishes of her mother and father.