Recent reports have stated that Tiger and Elin’s marriage is definitely
over. Reports suggest that custody of the children is the central issue
in the parties divorce. According to the press, Tiger and Elin are trying
to work on an agreement where Elin can take the kids to Sweden and Tiger
will have either custody or visitation rights. Tiger is seeking joint
custody of their children. Sources say there has been no conflict over
the children and Tiger and Elin only want what is best for them.
How would Tiger and Elin resolve custody and access issues in Ontario?
First it is important to note that ‘custody’ in Ontario refers
to the major decisions that affect the overall welfare of the children
such as education, religion and the children’s healthcare. It does
not pertain to the time spent with the children, access however does.
The Ontario courts are more likely to award joint custody where the parties
have a good relationship. Joint custody requires parents to make important
decisions about their children together, which is difficult when the parties
cannot co-operate. Seeing as how Tiger and Elin are attending basketball
games together, we can assume that they are on relatively good terms.
An Ontario judge would likely award Tiger and Elin joint custody because
they are communicating with one another and thus should be able to make
important decisions regarding their children together. Furthermore, there
is no evidence to show that Tiger’s infidelities have had any negative
effects on his parenting ability, therefore, joint custody will most likely
be granted. Primary residency refers to the parent who primarily cared
for the children during the marriage and after the parties have separated.
Given Tiger’s busy golf schedule, we can assume that Elin was the
primary caregiver during the parties’ marriage. If this is the case,
then it is likely that the court will award primary residency with Elin.
Since the parties have an amicable relationship, it is also likely that
Tiger will have generous access with the children, discussed below.
‘Visitation rights’ is what is termed ‘Access’ in Ontario.
Access deals with the amount of time a non-custodial parent (here Tiger)
has with the children. Access will allow Tiger to visit the children.
Tiger and Elin can either come up with an access schedule together, or
alternatively, the court may determine same. If this is the case and Tiger
has a good parent-child relationship with his children, the court will
allow Tiger to have generous/liberal access with the children.
What would happen if Elin decides to move the children to Sweden?
The notion of custody under the
Divorce Act encompasses the right to choose the child’s place of residence,
absent an agreement or a court order to the contrary. Elin can decide
the children’s place of residence subject to Tiger’s rights
to oppose the change by seeking a variation of the custody or access terms
(if there is an order in place).
If there is an existing custody order in place, Tiger would need to apply
for a change in the custody order establishing that there has been a material
change in the circumstances affecting the children, namely that Elin would
like to move the children to Sweden with her, which will affect Tiger’s
access with the children. The court will then consider what is in the
best interests of the children. This inquiry does not begin with any presumption
in Elin’s favor although her views will be respected and considered
as she is the custodial parent.
As outlined in the Supreme Court decision ofGordon v. Goertz, the Court will then consider the following factors:
- the existing access arrangement and the relationship between the child
and the access parent; - the desirability of maximizing contact between the children and both parents;
- the views of the child;
- the custodial parent’s reason for moving, (only in the exceptional
case where it is relevant to that parent’s ability to meet the needs
of the child); and - disruption to the child of a change in custody; and disruption to the child
consequent on removal from family, schools, and the community he or she
has come to know.
If Elin and Tiger were on bad terms and the Court was of the view that
the reason for the move was to frustrate a positive access relationship
with Tiger and the children, then motive for the move may be considered
by the Court and thus, the Court may not allow Elin to take the children
with her to Sweden. The onus would shift to Elin to establish that the
decision to relocate is not made in order to undermine Tiger’s access
time with the children.