“Kathleen also kept referring back to the original supervision order against Aamir, and cited Aamir’s concession that Kathleen was the child’s primary caregiver. The child was less than a year old. This was not so much a concession but a fair description of the bond between mother and her nursing baby. Kathleen has kept raising this point-in-time concession at the emergency motion to score legal points. Her reliance on this “primary caregiver” label was essentially a proxy for the presumption of custodial advantage under the discredited “tender years” doctrine: See G.C. v. R.D.P., 2021 ONSC 4206 (CanLII), at para. 97. In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 45, the Supreme Court of Canada cautioned against the use of such presumptions:
To the extent that the proposed presumption would give added weight to the arrangement imposed by the original custody order, it may diminish the weight accorded to the child’s new needs and the ability of each parent to meet them.
The above extract from Gordon described the obvious logic that children’s needs change depending on their stage of development and individual characteristics. In Hatab v. Abuhatab, 2022 ONSC 1560 (CanLII), at para. 64, this court held that because contact with both parents is the child’s right, the court has a duty to counter a parent’s unreasonable resistance to the other’s parenting time by increasing the opportunities for the child to enjoy the love and support of that other parent.”