Child Custody & “The Best Interest of the Child”

What are Custody and Access?

In a divorce proceeding involving children, both parents are equally entitled to seek custody.

Custody is different than access. Custody is having the decision-making power over important decisions affecting your child’s wellbeing. These include decisions like the child’s education, religion, and health care. Custody does not relate to how much time you spend with your child. Rather, how much time a parent spends with a child is known as access.

“Best Interest of the Child” Test: The driving principle in determining custody is the “best interest of the child.” This is a highly contextual legal test, which gives judges a fair amount of discretion. The judge decides the “best interests of the child” by reference to certain factors that are outlined in section 16(8) of the Divorce Act. It states: “… the court shall take into consideration only the best interest of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.”1 A child’s best interest is also determined by responding to the child’s particular age, capacity, and maturity.

There is a lot of weight in maintaining the status quo for children. Divorce is disruptive, and so consistency minimizes the changes to a child’s daily routine, schooling, and extra-curricular activities. Another factor is each of the spouse’s parenting ability. This includes the parent’s ability to meet the child’s physical and emotional needs. For example, the ability to provide food, clothing, proper housing, and loving support.

If it can be determined, a judge may look to a child’s “views and preferences” for custody. The age of majority in Ontario is 18 years old, and the closer a child is to this age, the more say they will have over whom they live with. Therefore, a child’s wishes are more likely taken into account by a judge if the child is older and more emotionally mature.

Further, if a judge needs the child’s views and wishes to help them decide, a judge can request the Office of the Children’s Lawyer to prepare a “custody and access assessment” with the child. Another option is the child may meet with a lawyer or social worker and together they prepare a “voice of the child report.” Lastly, a judge may simply speak to the child alone in their office to assess the child’s custody preferences.

Different Types of Custody Arrangements:

Sole Custody: type of custody where one parent has all the decision-making power to make important decisions about the child’s upbringing (education, religion, and health care). The other parent that does not have custody of the child can express their opinion, but the sole custody parent ultimately makes the final decision. Generally, but not always, the child will live primarily with the parent that has sole custody.

Joint Custody: Type of custody where both parents have the decision-making power and must agree on important decisions about their child together. For this arrangement, it is important that the parents can cooperate and communicate effectively.

Shared Custody: Type of custody where the focus is on the amount of time a child spends with a parent. It does not include which parent has decision-making power. With shared custody, a child lives at least 40 percent of the time with each parent. In terms of decision-making power, it could belong to one parent or both.

Split Custody: type of custody where one parent has custody of some of the children, and the other parent has custody of the other children. This means, for the parent who has custody, that child lives with them more than 60% of the time. Split custody is normally granted in situations where the children are old enough to express an opinion about which parent they wish to live with.

As experienced family lawyers, we can help you plan a custody and access arrangement which supports your child’s needs and maintains an appropriate level of contact for both parents with your child. Or in cases, where contact by the other parent is not appropriate, we can help you protect your child’s best interests in bringing such a matter to the Court’s attention.

Contact us today to arrange a free consultation with us. You can reach our office at 905-366-0202 or you can contact us through our website here.

1 Divorce Act, RSC 1985, c 3, s 16(8).

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