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, both parents spend at least 40% of their 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. If there are several children, split custody may be an option. 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. Parents should seek the help of trained professionals to create a “joint” agreement about the care of their children. A proper agreement can deal with an array of issues like visitation schedules, religious upbringing and other fundamental aspects of the child’s life.
In child custody and access cases, the court’s analysis always focuses on the best interest of the child. There is no definitive list of what is in the best interest of a child, but legislation provides a general 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
- claiming custody and access of the child, even if he or she is not blood-related
- the family living with the child
- 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
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.
You should seek legal advice if you want to make a court application affecting custody or access to your child.
If you have a child custody or access issue, please contact us for a free consultation. 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 help you come up with a plan to move forward. Give us a call at 905-366-0202 or book online.