By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration.

The recent Ontario Superior Court case of Wallace v. Wallace, 2023 ONSC 6927 provides critical guidance for family law counsel when addressing parenting disputes that arise following the death of a parent. Justice Henderson’s thoughtful reasons demonstrate how to apply the paramount consideration of children’s best interests and craft appropriate terms when conflicting parenting claims collide.

Facts: Maintaining Stability After Loss

This case involved an all too common modern family structure – Laura Wallace had four children ages 9, 7 and 5-year-old twins with her former spouse David Wallace. Laura battled breast cancer and after repartnering with Bradley Martin, she unfortunately passed away in August 2023. This triggered urgent motions from both Mr. Martin and Mr. Wallace seeking parenting orders concerning the grieving children.

Interim Parenting Order

In making an interim order pending trial, Justice Henderson confirmed the strong presumption favouring maintenance of the status quo, particularly for bereaved children requiring continuity. He held the children should remain primarily with the stepdad, Mr. Martin, who had been increasingly involved in their daily care and could provide stability alongside Laura’s supportive parents.

Of note, the biological father, Mr. Wallace’s insensitive actions in unilaterally withholding the children after Laura’s death and focus on perceived grievances, rather than prioritizing the children’s emotional needs at this traumatic time, raised red flags about his judgment.

Overarching Priority: Children’s Wellbeing

The ultimate parenting determination rightly centred on an in-depth analysis of the children’s best interests under s. 16 of the Divorce Act. Justice Henderson stressed that the children’s physical, psychological and emotional safety and wellbeing must remain the court’s overarching priority – not the desires of competing adult parties.

When assessing competing parenting claims after a parental death, counsel must echo this child-focused mindset and thoroughly canvas factors impacting the child’s interest – from stability and continuity to family violence and the child’s views.

Biological Ties Only One Element

Justice Henderson confirms biological connections are but one consideration under the governing best interests test. He reiterates extensive case law denying any prima facie “parental right” flowing from genetic links.

In this case, Mr Wallace’s parental status could not overcome evidence that uprooting the children from Mr. Martin and their maternal grandparents at this traumatic juncture would undermine their stability and emotional recovery.

Increase Parenting Time, Not Switch Primary Residence

Rather than a drastic switch in the children’s primary residence, the court sought to nurture both familial relationships by providing Mr. Wallace increased parenting time with longer blocks over holidays and summer. This balanced approach allows Mr. Wallace to play a more involved role in his children’s lives, while avoiding further disruption.

Counsel can draw on this case to advocate for similarly graduated parenting schedules when advising devastated clients after the loss of an ex-partner. Justice Henderson confirms the court can properly expand parenting time without the all-or-nothing solution of changing the children’s primary home.

Child Protection trumps Parental Desires

This case starkly illustrates that when assessing parenting claims after parental death, the court’s focal point remains the children – not the desires of grieving adults. By outlining multiple instances of Mr. Wallace asserting his own interests over the children’s needs, Justice Henderson provides an evocative warning.

Counsel should advise clients that courts will filter evidence through the ultimate lens of child protection. Self-focused complaints of perceived wrongs by former partners or demands to elevate biological ties over emotional wellbeing will gain little traction compared with evidence demonstrating the child’s best care option.

Wallace v. Wallace reaffirms that in parenting claims triggered by parental death, maintaining stability and continuity will often align with children’s best interests. However, provided the ultimate priority – children’s safety and wellbeing – is not compromised, courts may balance continuity concerns with gradually expanding parenting time to strengthen biological parental bonds.

Let’s continue to elevate the practice of family law in Ontario!

Connect with us on LinkedIn.

Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.

  • Nearly Four Decades of Expertise in Family Law: Cheryl brings to bear almost 40 years of experience practicing exclusively in family law.
  • Masters Degree in Counselling for Empathetic Insight: Cheryl’s Masters Degree in Counselling equips her with an exceptional blend of empathy and insightful understanding.
  • Certified Family Law Specialist by the Law Society: As a Certified Family Law Specialist by the Law Society of Ontario, Cheryl is a recognized expert in the area of family law.
  • Accredited Mediator by OAFM: Cheryl is a trusted mediator accredited by the Ontario Association for Family Mediation.
  • Designated Arbitration Professional by ADR Institute: Her expertise in arbitration is reflected in her professional designation from the ADR Institute of Ontario.
  • Recipient of Prestigious Awards and Honours: Cheryl has been honored with numerous awards, including the distinguished Ontario Bar Association’s Award for Excellence in Family Law.

Legal Disclaimer: See Privacy Policy

Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.

Scroll to Top