“The appellant submits that the trial judge was required to make a finding of custody and that his failure to do so constitutes an error of law.
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 twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. 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” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.”