Child custody is one of the most challenging issues to cooperate on when parents separate or divorce. It is also often misunderstood.
Legally, “custody” refers to a parent’s right to make decisions for his or her child on major aspects of the child’s life, such as education, health and religion. Custody is different from “access” which refers to a parent’s right to spend time with the child, to ask questions and be informed about the child’s development.
In Canada, all parents have the right to seek custody and access of their children, whether or not they are married or live together. Federal legislation (the Divorce Act) applies to married parents pursuing a divorce. Provincial legislation (in Ontario, the Children’s Law Reform Act) applies to parents who are not married or who are not pursuing a divorce.
Joint and Sole Custody: The Two Main Types of Child Custody in Ontario
Sole custody gives only one parent the right to make important decisions on the child’s behalf. However, that does not mean the other parent cannot have access to or visit the child. The other parent can also have input in decision-making, although the custodial parent gets to have final say.
Joint custody can refer to joint legal custody or joint physical custody.
In joint legal custody, both parents share equal responsibility towards their child and require each other’s consent before making an important decision about the child. This arrangement is possible even if the child might live with one parent only. However, this arrangement may not be ideal if the parents have poor communication with one another and cannot put aside differences for their child’s sake.
In joint physical custody, or what’s commonly known as shared custody, each parent spend at least 40% of his or her time with the child. This arrangement is about access only. In other words, joint physical custody is possible even if one parent has the final decision-making authority regarding the child.
The Split Custody Parenting Agreement
Another type of parenting agreement, aside from joint and sole custody, is split custody. Split custody may be possible if multiple children are involved. One parent would have sole custody of some of the children and the other parent would have sole custody of the other children. Sometimes this occurs with children who are old enough to choose which parent they want to live with. However, this arrangement is rarely enforceable by the courts because courts do not like separating siblings, especially younger siblings.
Custody and access arrangements are necessarily complex to account for individual circumstances. Upon separation or divorce, parents should work with one another and seek the help of trained professionals to create a “joint” agreement about the care of their children. A proper agreement is much like a parenting plan and can deal with an array of issues like living accomodations, visitation schedules, religious upbringing, and all other fundamental aspects of the child’s life. The agreement should be carefully worded so that it can be legally binding and enforceable, if one parent ever decides to take the other parent to court over custody and access issues.
In child custody and access cases, the court’s analysis always focuses on the best interest of the child. There is no exhaustive list as to what would be considered the “best interest of the child” but legislation provides a starting point. In Ontario, the Children’s Law Reform Act lists certain factors that the court must consider. To summarize, some of the important factors considered are:
- The child’s relationship with
- anyone claiming custody and access of the child, even if he or she is not blood-related
- anyone in the family living with the child
- anyone involved in raising the child
- What the child wants, if it can be reasonably determined
- How long the child has lived in a stable home
- Long-term stability of any proposed family unit for the child
- Parental ability of each person claiming custody
- Any proposed parent plan
- Who can provide the child the necessaries of life and accommodate any special needs
Pre-nuptial or separation agreements that deal with child custody and access are not iron-clad. A court can still look at whether the agreement is consistent with the “best interest of the child” principle. If the court decides that a given agreement is not in the best interest of the child, then it has the authority to change it and make any order that is consistent with the principle.
Custody and access cases can become even more complicated if a parent has a history of substance abuse, domestic violence or parental alienation. Courts may involve third parties like social workers, child psychologists, and other professionals to provide their expert opinions.
It is important to seek legal advice if you want to make a court application that is going to impact custody or access rights to your child, or if you have already been served with an application and need to respond.
If you face a child custody or access issue and want to know your legal options, we encourage you to contact us to arrange a free consultation with one of our lawyers. Get help from family law lawyers who are trained to help you navigate through difficult custody battles. Our lawyers can give you independent legal advice about your custody situation or help you with your divorce.
Need a divorce? Meet with one of us and we’ll see if we can help. Our family law lawyers are happy to sit down with you and discuss your legal issue. We can discuss your separation and divorce and help you with custody and access. Tailor Law Professional Corporation offers a free consultation where you can speak to a lawyer about your situation. One of our family lawyers will inform you of your rights and options, and help you come up with a plan to move forward. Give us a call at 905-366-0202 or book online.