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Just a few weeks ago, US Weekly reported that actress Malin Ackerman and husband Roberto Zincone had officially separated. The news came as a surprise to many, as the couple gave birth to their first child, son Sebastian, just 7 months ago.

Now, TMZ is reporting that Zincone has filed for divorce in Los Angeles. No further details regarding Zincone's claims are known at this time.

Swedish-Canadian actress, singer, and model, Ackerman is best known for her roles as Silk Spectre II in Watchmen and Eva in Wanderlust. She currently stars in ABC's sitcom, Trophy Wife. According to sources, the actress met Zincone, in 2003 when she was the lead singer of The Patalstones, a band in which Zincone served as drummer. The couple married in Italy on June 20, 2007.

While questions remain as to the cause of the marriage breakdown and the reason for Zincone's filing, there is no doubt that custody of their young son will be at issue.

In Ontario, custody and access is decided by looking solely at the best interests of the child. Section 24(2) of the Children's Law Reform Act (CLRA) lays out the criteria a court shall consider in determining the best interest of the child, including:

  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;
  1. the child's views and preferences, if they can reasonably be ascertained;
  2. the length of time the child has lived in a stable home environment;
  3. 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;
  4. the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
  5. the permanence and stability of the family unit with which it is proposed that the child will live;
  6. the ability of each person applying for custody of or access to the child to act as a parent; and
  7. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

These days, mothers are no longer favoured to raise young children simply by virtue of their gender.

Twenty-twenty-five years ago, however, the courts were cognizant of the "tender years presumption" (TYP) in determining custody of young children. In effect, the TYP stipulates that mothers are better equipped to care for children under the age of seven.

While s.21(1) of the CLRA reflects a shift in societal attitudes, namely that mothers and fathers are equally entitled to custody of the child, the TYP is still influential in the minds of some judges (but has been rejected as a matter of law). Moreover, since the introduction of the Charter, there is a strong argument that the TYP violates equality rights on the grounds of gender bias.