The most important consideration in many separations and divorces is how to ensure that the children of the family are least impacted by the changes. Decisions will have to be made about how and where the children spend their time (access or parenting time), and how decisions will be made for the children (custody or decision making).
What is Custody?
Custody can simply be described as a right to make critical decisions in the child’s life. This involves decisions on how to care for or raise the child such as their religion, health care, and education. Most people assume that child custody simply dictates who lives with the child or how much time they spend with each parent, but this is not the case. A parent may have custody, but the child can still spend equal time living with each parent. There are also many cases where both parents have custody and contribute to making certain decisions in the child’s upbringing, but the child mainly lives with one parent.
Clients often confuse custody, the right to make major decisions for a child, such as medical, educational, spiritual and religious decisions, with parenting time, the amount of time a child spends with a particular parent. In Ontario, both the Divorce Act and the Children’s Law Reform Act govern (but the Divorce Act only applies to parents who are or were married).
When parents of a child are in an intact relationship, they are equally entitled to custody of their child(ren). When parents separate, a parent (by their consent, implied or express, or by acquiescence) may cede their right to the other party. Generally speaking, parents will continue to have joint decision-making responsibility (joint custody) until an agreement or court order states otherwise.
When parents cannot agree, either through negotiations or ADR, on the appropriate parenting arrangements for a child, either parent may bring an application in court for the determination of the issues of child custody and access.
It is important to know that there is no presumption of joint custody. If the matter goes to court, a party claiming joint custody will have to present evidence that it is in the best interest of the child for the child’s parents to have joint custody. It will not be enough to state the fact that a child has two loving parents.
The sole consideration while determining custody and/or parenting arrangement for a child is the best interest of the child(ren). Section 24(1) of the Children’s Law Reform Act mandates that the court will consider a child’s needs and circumstances, including:
the love, affection and emotional ties between the child and,
- each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
- other members of the child’s family who reside with the child, and
- persons involved in the child’s care and upbringing;
the child’s views and preferences, if they can reasonably be ascertained;
- the length of time the child has lived in a stable home environment;
- the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
- the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and any familial relationship between the child and each person who is a party to the application.
There are rules about where an application for custody can be brought. It is important that you seek the advice of a family law lawyer when you start dealing with issues of custody and/or access to your child(ren).
Types of Child Custody in Ontario
There are two main types of child custody:
There are situations where both parents agree on making important decisions about the child. This is known as joint custody. In this type of custody, one parent cannot make all the important decisions without the other parent agreeing to it. This arrangement often works when both parents share similar ideas on how to raise the child. Joint custody is normally complex for some couples as it requires a lot of co-operation. Parents can agree on which aspects of their child’s life that they would make decisions on. For instance, one parent can make decisions about the child’s religion and the other on their health care and education.
This simply means that one parent will make all the important decisions about the child. When a parent is given sole custody, he/she may be required to inform the other parent when making major decisions about the child, but they don’t have to agree on the decision.
Types of Child Access in Ontario
When a parent is given sole custody, the other is usually given access. Access simply means that the other parent has a right to spend time with the child. This arrangement is often done when the child mainly lives with one parent. When a parent is given access, they have a right to get information on their child’s healthcare, education, and well being from the other parent who mainly lives with the child. Some information may be withheld from the parent with access such as hospital records until the parent with sole custody provides written consent.
There are 4 different types of access:
In cases where parents are able to co-operate, the access plan can remain flexible. That’s why this type of access is known as reasonable, liberal, or generous access. It allows the parents to informally agree on how they can spend time with the child. These informal plans are often not rigid and can be changed as the situation changes.
There are cases whereby the access plan is more specific and detailed. Specified access can have as much information as possible including where the access will take place, the different occasions such as birthdays, long weekends, and religious occasions that the other parent will have access to as well as who is responsible for the pick up and drop off of the child among other conditions.
Sometimes access may need to be supervised by a third party such as a friend, relative, or social worker. This type of access is often ideal in situations where the parent with access has a drinking or drug problem, has abused the child in the past, or has threatened to take the child away from the other parent. Sometimes the parent can only access the child in the presence of a children’s aid worker.
There are extreme cases where one parent is denied any access to their child. This is often the case when the parent who has been denied access has neglected or abused their child previously or whenever the child’s safety cannot be guaranteed in the presence of that parent.
Who Can Get Child Custody and Access?
Custody and access are often given to the child’s parents. However, there are some unique cases where other people are granted access or custody. For instance, the child’s stepparent, grandparents, or other relatives who have a close relationship with the child may be given access or custody. If a parent has sole custody, he/she can choose who to give custody of their child for the first 90 days after their demise. This person doesn’t have to be the child’s other parent. Within the first 90 days, the child custody will be granted according to the parent’s wishes and any other person who wants to have custody can go to court and begin the application process. Custody and access cases are ruled based on the best interests of the child.
A written parenting plan often regarded to as a separation agreement or paternity agreement covers all custody and access matters. To come up with this plan, it’s recommended that you have someone you trust such as your lawyer or mediator by your side. A lawyer would be of invaluable help to you because you need proper legal advice before signing this written agreement. The agreement is signed by both parents and a witness. All guidelines stipulated in the plan must be followed by both parents unless they agree to change, or the matter is taken to court, and new changes are allowed.
When parents cannot come up with a parenting plan on their own, they can use a mediator to help address their issues. Mediators can be social workers or psychologists. Unlike lawyers, mediators don’t give any legal advice and aren’t allowed to take sides. Keep in mind that taking this route may not be a good idea if there has been a history of violence or abuse or if there have been serious mental health issues. It’s a good idea to have your lawyer during the mediation process. Your lawyer will review any agreement that comes up after the mediation process and provide you with sound legal advice before you sign it.
Arbitrators, unlike mediators, can make legally binding decisions on behalf of both parties should they fail to agree. Arbitrators can be retired judges, mental health workers, and experienced lawyers. There are clear rules for arbitrators to follow in order for their decisions to be considered legally binding. For instance, each parent should get legal advice prior to agreeing to arbitration. Additionally, the arbitrator is required to make decisions based on the best interests of the child and not based on other factors such as religious or cultural factors. Having a lawyer by your side when you go to arbitration is important.
Going to Court
Sometimes the only way to address custody and access cases is to go to court. The judges will look at factors such as if the other parent were violent or abusive towards the child, their partner, or anyone in their household and determine the best course of action. Judges also consider the relationship between the child and each parent and whether the parents have the ability to care for the child.
Independent assessments are often done by professionals such as psychologists, social workers, and mental health professionals who determine what is in the best interests of the child when making decisions regarding custody or access. The parents may go for a private assessment which they have to pay for or request the children’s lawyer to prepare the report at no fee.