Common Law Divorce: Child Custody & Access in Ontario

Common-law relationships in Canada are on the rise among couples. One of the main advantages of this arrangement compared to a traditional marriage is that that when the common-law couple breaks up, there is no legal action required, no divorce process. However, matters become more complicated when children are involved.

In Canada, all parents—married or not—are entitled to seek custody and access of their children. What does that mean for common-law couples? The implications vary depending on jurisdiction.  

In Ontario, two people are considered to be in a common-law relationship if:

  • They have lived together as a couple for at least 3 years, or
  • They have a child together and are in a relationship of “some permanence” for any length of time

The Children’s Law Reform Act is the Ontario legislation that governs child custody and access issues for common law couples. When it comes to the terminology, it is important to keep in mind that custody is different from access from a legal standpoint. “Custody” refers to a parent’s right to make decisions for his or her child on fundamental aspects of the child’s life, such as health, education and well-being. On the other hand, “access” refers to a parent’s right to visit the child, to make inquiries and receive information about the child’s well-being and upbringing.

There are 4 general types of custody:

  1. In sole custody, only one parent has the right to make important decisions on the child’s behalf. However, the other parent might have access and visitation rights. The other parent may also be able to express an opinion on important issues, but the custodial parent makes all final decisions.
  2. In joint legal custody, both parents have equal responsibility in decision-making and require each other’s consent. This arrangement is ideal if parents are able to communicate effectively with one another and able to set aside conflicts in order to care for their children. Joint legal custody is possible even if the child lives primarily with one parent.  
  3. In joint physical custody (or shared custody), both parents spend at least 40% of their time with their children. Shared custody should not be confused with joint custody. Shared custody is simply a type of access arrangement. This arrangement is possible even if one parent has sole custody of the child.
  4. In split custody, one parent has sole custody over some of the children and the other parent has sole custody of the other children (i.e. daughters with mothers, sons with fathers). This arrangement is rarely enforced because courts are reluctant to separate young siblings. Split custody is more common for children who are old enough to express an onion about which parent they want to live with.  

Custody and access arrangements do not have to fit neatly into the above categories and can be tailored to individual circumstances. In some cases, parents have been able to compromise and execute a “joint” agreement with the help of qualified professionals. A child custody agreement is similar to a parenting plan and can deal with issues like living arrangements, visitation schedules, pick-ups and drop-offs, and many other important aspects of the child’s development. A well-executed agreement is more likely to be binding and enforceable, if the matter ends up in court.

The courts have a lot of discretion in child custody cases, but all decisions share a focal point: the best interest of the child. The Children’s Law Reform Act provides specific guidance as to what a court must consider in assessing the best interest of the child, and they include the following:

  • 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 permanent 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
  • The relationship by blood or through an adoption order between the child and each person who is a party to the application

Courts may also rely upon interventions by social workers, counsellors and other professionals, especially where a parent has a history of substance abuse, domestic violence or parental alienation. Therefore, child custody and access cases can get complicated very fast and drag on at the same time. It is important to seek legal advice if you are confronted with a court application that is going to impact custody or access rights to your child, or if you wish to make such an application to restrict custody or access of the other parent.

If you are in a common law relationship and have questions about child custody and access, we encourage you to contact Tailor Law and book a free initial consultation with one of our family lawyers.

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