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Until this week, Padma Lakshmi, of Top Chef fame, and her ex Adam Dell had been working to negotiate a settlement in their separation. The main focus of these settlement discussions has been the couple's 11-month-old daughter, Krishna. This week, Adam filed a lawsuit in New York for full custody of Krishna. Currently, Krishna lives with Padma and has access visits with Adam 9 days out of each month.

Adam has claimed that Padma had been trying to convince their daughter that her current partner, Ted Forstmann, is her father. In addition, Adam made claims that, as Padma is so focused on her very busy and unpredictable career, he should have sole custody of Krishna as it would be best for her.

How would this matter be dealt with in Ontario?

There are two main issues in this case as it has been reported: 1) Child Custody and Access; and 2) Child Support.

Child Custody and Access: In Ontario, when a party seeks sole custody of a child, this pertains to the major decision making for the child as well as the day-to-day decisions for the child's care. Such decision-making would include the issues regarding the child's medical treatment, religious upbringing, and education. As the parent with sole custody, this person would not have to consult with the other parent prior to making any such decisions.

In the United States, "custody" refers to both the physical and legal decision making custody of the child. In Canada, as explained above, "custody" refers to decision-making only. When speaking about where a child will physically live, we have discussions about "access" or "primary residence" of a child. In the normal course, when a parent has sole custody of a child, the child's primary residence will typically also be with that parent. The other parent will have access with the child on a specified schedule which has either been ordered by the Court or agreed to by the parties.

Before a Court makes a determination regarding the custody of and access with a child, it will look to the historical parenting patterns of the family. It is likely that the parent who primarily cared for the child during the marriage, and since the separation, will be awarded the primary residence of the child. This is known as the "status quo" and Courts typically do not like to interfere with this as they wish to ensure as little disruption as possible to the to the child's life and routine. However, please note that a court will only make a decision that is in the best interests of the child. If a parent is awarded with the custody and primary residence of a child, as Adam is requesting in this case, this does not mean that the other parent is not allowed to see the child on a regular basis. Again, the Court will determine, or the parties will agree, to a schedule which outlines the times which the child will be with the other parent.

In this case, Adam is requesting "sole custody" of Krishna. As discussed, if these parties were living in Ontario, he would be requesting the sole decision-making responsibilities for Krishna and that her primary residence be with him. It has been reported that Krishna currently lives primarily with Padma and her new partner and that Adam sees Krishna 9 days out of each month. With respect to custody, if a Court sees that these parents are simply unable to work together to make major decisions for Krishna, they may decide that sole custody is appropriate in this case. As the child is only 11-months old and the couple split just after she was born, the current status quo seems to be that Padma has the primary residence of the child. Again, a Court would have to have a good reason to change the primary residence of Krishna from Padma to Adam. Adam is attempting to show the Court that they should do this by claiming that Padma's career is very busy and that she has to travel quite often as a result. Adam is arguing that because of this, he is better able to provide Krishna with a stable home environment to meet her needs. Along with this move in residence, Adam is also requesting that he be awarded with the ability to make major decisions for the child solely. Without knowing more information about the background in this case, it is very difficult to determine whether a Court would grant Adam with his requests and move Krishna from her primary residence with Padma and give him the custody of her as well.

Child Support: In Canada, parents have the legal obligation to support their dependant children. Under the Federal Child Support Guidelines, the access parent is responsible for paying child support to the parent who has the primary residence of the child as it is this person who incurs the daily costs associated with caring for the child and the access parent should therefore, contribute to these costs. The Guidelines set out the specific amount that a payor is responsible for based on his/her income and the amount of children.

Therefore, in this situation, if Krishna's primary residence was with Adam as he has requested, Padma would be responsible for paying a monthly amount of support based on her annual income to Adam. The reverse is also true and if Krishna's primary residence remains with Padma, Adam will be responsible for paying support to Padma.