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Heidi Klum and Seal Divorce Heats up - Project Primary Care?

Things got ugly this week in the divorce proceedings between model and television host Heidi Klum and her soon to be ex-husband, singer Seal.

According to reports, Seal has accused Klum of having an affair with her bodyguard, claiming that the tryst was the cause of the pair's split after seven years of marriage.

For his part, the singer has been rumoured to be casually dating again, causing Klum to change her position about custody of the couple's four children. According to reports, Klum had initially sought primary care of the children, but had recently relented at the singer's insistence that they share joint custody. However, after learning of Seal's casual dalliances, Klum has reverted to her original position and is seeking primary physical care of the children once again.

While many factors are likely to influence a parent's position on the custody of their child, courts in Ontario are concerned exclusively with the best interests of the child as the guiding factor in the determination of custody issues.

So, what exactly does a determination of the best interests of a child entail? According to section 16(8) of the Divorce Act,

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Ontario's Children's Law Reform Act, provides additional elucidation regarding the best interests of the child analysis. According to section 24(2), the court will consider, among other factors:

  1. the love, affection and emotional ties between the child and,
    1. each person entitled to or claiming custody of or access to the child,
    2. other members of the child's family who reside with the child, and
    3. persons involved in the child's care and upbringing;
  2. the child's views and preferences, if they can reasonably be ascertained;
  3. the length of time the child has lived in a stable home environment;
  4. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  5. the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
  6. the permanence and stability of the family unit with which it is proposed that the child will live;
  7. the ability of each person applying for custody of or access to the child to act as a parent; and
  8. the relationship by blood or through an adoption order between the child and each person who is a party to the application

Clearly, the analysis is comprehensive in its regard for all aspects of a child's wellbeing. As such, in spite of Klum's irritation at Seal's casual cavorting, an Ontario court would require much greater detail surrounding each parent's particular circumstances and parenting abilities before a custody determination could be made.


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