“In my view, the parties do not need a custody order going forward. In M. v. F., 2015 ONCA 277 (CanLII), a case involving a claim for custody of a six-year-old boy in the context of an extremely acrimonious parental relationship, at paras. 38-40, Benotto J.A. stated:
The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory: the court… By order may grant the custody of or access to the child to one or more persons (emphasis added).
For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.
It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” connotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.
I also note that section 16(1) of the Divorce Act uses the word “may” in relation to an order that the court may make respecting the custody of or access to children of a marriage.”