TMZ has reported that
Mariah Carey and Nick Cannon separated in May. TMZ further reported that their divorce lawyers have been negotiating
a property settlement and custody arrangement since this time.
Sources have stated that Mariah feels as though Nick has accepted nearly
every job offered to him and, consequently, has been away from their two
children for extended periods of time.
Let us take a legal look at how an Ontarian Court may decide the custody/access
arrangement between Mariah Carey and Nick Cannon if their negotiations
faltered and the matter was left for a judge in Ontario to decide.
For married spouses in Ontario who are divorcing, the legal principles
for determining applications for custody and access are set out in section
16 of the
Divorce Act. First and foremost, the best interests of the child is the primary and
guiding principle for the courts when deciding a matter pertaining to
custody and access. What is in the best interests of the child is determined
by reference to the condition, means, needs, and other circumstances of
the child (see section 16(8) of the
Divorce Act). Furthermore, past conduct of a parent is irrelevant unless it affects
the ability of that person to act as a parent (section 16(9) of the
Divorce Act).
Secondly, a court will often be guided by the principle that a child should
have as much contact with each parent as is consistent with the best interests
principle stated above.
Custody refers to how major decisions for the children will be made and by whom.
If the parents are able to communicate with each other effectively with
respect to the children, a court will often award joint custody, meaning
that the parents of the children will make major decisions together. Joint
custody, however, does not mean that the child will split time between
the parents. As often is the case, a court will often order that children
will primarily reside with a particular parent in the case that joint
custody is ordered.
If parents are unable to communicate with each other in any capacity, a
court will order sole custody of the children. Further to this point,
the case law has progressed to affirmatively hold that courts should not
force two parties to communicate who have thoroughly demonstrated their
inability to do so. The case law is firmly supported by the guiding principle of the
best interests of the child.
In this case, there is no evidence to show that Mariah Carey and Nick Cannon
would be unable to communicate with one another with respect to their
children. Thus, a court may be inclined to order joint custody. Given
Nick’s extended periods away from the children, however, a court may
order that the twins primarily reside with Mariah.