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The Tender Years Doctrine was confirmed in the 1955 Court of Appeal case of Bell v Bell. Here, Roach J.A. stated:
“No Father, no matter how well-intentioned or how solicitous for the welfare of such a child, can take the full place of the mother. Instinctively, a little child, particularly a little girl, turns to her mother in her troubles, her doubts, and her fears. In that respect, nature seems to assert itself. The feminine touch means so much to a little girl; the frills and flounces and the ribbons in the matter of dress; the whispered consultations and confidences on matters which to the child’s mind should only be discussed with mother; the tender care, the soothing voice; all these things have a tremendous effect on the emotions of the child. This is nothing new; it is as old as human nature.”
Jump ahead almost thirty years to 1983 and the Court of Appeal was forced to reconsider this doctrine. The Court of Appeal found that the 1955 case of Bell v Bell confused cultural traditions with human nature by assuming women were more qualified or equipped to care for children. The Court found that the ever changing societal views regarding family units ought to have some impact on the implication of the Tender Years Doctrine. As time passed, the assumption that men were to be the “bread-winner” while the women were to stay at home with the children, became blurred. The modern model of marriage did not set gender specific roles. Because of this, by the late 1980’s, the Tender Years Doctrine was obsolete.
Jump ahead again to 1993. In the Supreme Court case of Young v Young, the Court held that the best interests of the child is the only test in custody and access matters. As such, the Children’s Law Reform Act set an expectation that custody disputes will only be decided based on the children’s best interests and established a test to consider numerous factors to consider when determining what exactly is in the child’s best interests – including physical, emotional and developmental factors.
Now, aside from gossip on the street, the Tender Years Doctrine isn’t discussed in custody or access disputes. Above everything else, the Court is required to consider the best interests of the children. This means that the Court is ONLY concerned with the child’s best interests – it does not matter to the Court if the caregiver is the mother, father or technically, some other care giver. In other words, the Court does not set a preference between the father and the mother – it could be either or someone else, depending on the facts and circumstances of each case, and after applying the tests laid out in s. 24 of the Children Law Reform Act, which specifies a number of elements to determine the child’s best interests.
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