Would Ontario Courts have made a similar decision?

In Ontario, access decisions are made based on the best interests of the child. Parental hostility is one of the factors that Ontario Courts recognize as having an effect on the best interests of the child. In a recent interview with Howard Stern, Lindemulder explained that she has a voodoo doll of Jesse James’ current wife, actor Sandra Bullock. This clearly shows hostility towards Bullock, who has been helping James care for Sunny. Ontario Courts would likely view this hostility for Bullock as contrary to Sunny’s best interest and this might encourage an Ontario Judge to deny Lindemulder’s request for overnight access.

It is possible that Ontario Courts would also stop Lindemulder’s husband from spending time with the child, depending on the reason why he was sent to jail. If he was convicted for abuse or violent crimes, his presence could be considered contrary to Sunny’s best interests, especially considering that Aikman is not biologically related to Sunny.

In James’ court papers, he accuses Lindemulder of being an unfit mother. Ontario Courts tend to abide by a ‘do no harm’ principle that encourages the avoidance any situation which may have a harmful effect on the child. Depending on James’ credibility and the nature of the allegation, an Ontario Judge might abide by this principle and limit Lindemulder’s access with Sunny to avoid any harm that may result from overnight visits until Lindemulder’s fitness as a parent is determined.

It is important to note that the fact that Lindemulder was sent to prison does not make her an unfit mother according to Ontario Family Law. In Ontario, misconduct of anyone applying for access is only relevant to the extent that it affects that person’s ability to parent. As it is unlikely that cheating on your taxes will inhibit your ability to parent, Ontario Judges would probably not allow Lindemulder’s conviction to affect their access decision. Although, if it is likely that Lindemulder will reoffend, this may affect the stability of the family unit, which is a factor that Ontario Judges can consider.

According to Ontario Family law, the Courts would be determining this custody issue with the principled thinking of what is in Sunny’s best interests. Interestingly, in Ontario, misconduct by a parent in and of itself is insignificant in determining who the better parent is. However, what becomes significant to the Court is whether such misconduct will negatively affect the parent’s ability to care for the child. With this said, James and Lindemilder are both notorious for being celebrities that lead precarious lives. For instance, James is a television celebrity who is heavily tattooed and enjoys motorbikes and death-defying stunts. Lindemilder had a career in pornography, and has recently been released from a six month jail sentence for tax evasion. In comparison, Bullock has shared with a source that she always wanted to have children, but her late mother persuaded her to concentrate on her career instead.

Since Lindemulder has been in jail for six months, Sunny has been living with James and Bullock. Arguably, Bullock is considered a loco parentis for Sunny. This means that Bullock is “in place of a parent.” The factors the Court would look at to determine whether Bullock is in the role of the parent includes: whether Bullock provided financially for Sunny; whether Bullock disciplined Sunny as a parent; whether Bullock has represented to the world (i.e.: family, friends, etc…) that she is responsible as a parent for Sunny; and the nature of Sunny’s relationship with the absent parent, namely Lindemulder.

If the Ontario Court were faced with this high profile custody battle, the Court has to determine which parent(s) could better serve Sunny best interests, Lindemulder or James and Bullock. Although not an exhaustive list of factors, the Court would consider:

1. status quo – in Sunny’s case, she has been living with Bullock and James while Lindemulder has been serving a sentence of six months for tax evasion.
2. the child’s preference and emotional ties with parents – depending on the maturity level of Sunny, the Court may Order the Office of the Children’s Lawyer as a third party that represents and determines the child’s wishes about who they want to live with.
3. the parent’s ability to parent – according to James, Lindemulder’s ability to parent is questionable given that Sunny may potentially be exposed to pornographers, drug addicts, and unsafe environments. Conversely, Bullock’s states, “We do every mundane, normal thing that everyone else does. It’s about enjoying what we have.” This shows that the couple are able to care for Sunny like any other responsible parent(s) and that they do not want to be associated with the stereotypic Hollywood lifestyle.

At the end of the day, the Ontario Court would use the above factors and exercise its discretion in determining which parent(s) would ensure Sunny’s best interests.