Case Brief Wiki


The mother of a 4 1/2 year old appealed a decision at divorce hearing to grant custody to the father notwithstanding that the mother had interim custody and declared to be a fit parent. The trial judge granted the father custody as he will be more present and has family around to support him, while the mother intended to put the child in daycare. The mother's current residence is 50 miles from the ranch the father lives on (which was previously the family home). The mother contended that she should have custody due to concerns about allergies of the child on the ranch and because "there are certain things that a little girl... needs from a mother". The father argued he should have custody as it would be best for the child, plus he was willing to facilitate access to the mother on weekends and holidays when she was free.


  1. Did the trial judge commit a reversible error in failing to explicitly acknowledge the best interests of the child in his ruling?
  2. Did the trial judge have regard to the fact the mother was responsible for the marriage breakdown?
  3. Did the trial judge not give sufficient weight to the status quo ante?
  4. Did the trial judge incorrectly refuse to consider the "tender years principle"?


Appeal dismissed.


Justice Kerans, writing for the majority, dismisses each of the grounds of appeal in turn. While the trial judge did not explicitly use the phrase "best interests of the child", he did mention the "welfare of the child" and the decision was clearly made on that basis. What consideration the trial judge gave to the mother's infidelity was only to the degree that it was necessary to make a finding on the divorce issue and did not materially affect the custody decision.

Turning to the status quo ante rule, Kerans says the mother has the rule backwards. When an interim custody order is made, the rule is not to disturb de facto arrangements which have been made, however an interim order is simply a makeshift solution under the correct decision can be made. The status quo prior to the interim agreement was that the child was living on the ranch. Interim custody does not (or rather, should not) create a new status quo.

Kerans also dismisses the "tender years principle" ground of appeal. The trial judge is quoted:

There is no longer, in my view, any historic or traditional right that favours either mother or father. This issue must be decided on the merits of this case.

The mother argued that this was a rejection of even considering that the child was of tender years. Kerans disagrees, finding this was merely a rejection of the "rights based" approach to custody that would create a presumption in favour of the mother. This idea was founded on historical notions of the roles of mother and father and out-of-date views about gender. The "best interests" approach has superseded this doctrine.


  • The "tender years principle" has been overtaken by the "best interests" approach.
  • Which party was responsible for the breakdown of the marriage is only to be considered as a factor 'to the degree that it impacts the ability of the parent to care for the child.
  • Interim custody arrangements are only temporary and do not create any presumption in favour of the party who has interim custody; the status quo ante to be considered is that which existed prior to the marriage breakdown.