Representing Fathers in Family Law

What Legal Rights Do Fathers in Ontario Have with Regard to Their Child?

There do not exist any actual “rights to a child” for mothers or fathers. The job of a judge or collaborative law team is to determine the issues of custody, access, and support based on the best interests of the child. That being said, courts of the past operated on the assumption that children of young ages were better off living with their mothers. This assumption was referred to legally as the “Tender Years Doctrine”, and has now been abandoned in order for the legal system to align with the reality of contemporary child rearing.

When a parent has custody of a child, this parent has the legal ability to make decisions regarding the child’s life. When parents have joint custody of their child, this means that they are both equally entitled to make these life decisions. When parents share custody of their child, this means that not only are both parents able to make decisions about the child’s life, but that the child spends an equal amount of time with each parent.

Access to the child refers to the ability of a parent to spend time with his or her child. If the court decides that the non-custodial parent is a danger to the child, then that parent may only be allowed supervised access, restricted access, or no access at all.

Both parents have financial obligations to their child that cannot be contracted out of by way of a separation agreement. These financial obligations are called “child support”, and refer to the money owed to a child in order to maintain that child’s care and wellbeing. Child support payments are calculated based on the income of each spouse, and the amount of time the child resides with each parent.

What about fathers who are not married to the mother of their child?

Regardless of whether or not a father is or was married to his child’s mother, he can apply for sole or joint custody of the child. He has the same responsibilities to his child as he would if he had been married to the child’s mother. This includes the responsibility of financially supporting his child, whether or not he has custody or access. Mothers who do not have custody of or access to their children are under the same support obligation.

What about adoptive fathers?

When a couple or single person adopts a child, they assume all of the responsibilities that come with creating a child physically. Therefore, adoptive fathers have the same obligation to support their children as biological fathers. Questions of custody, access, and support are decided using the same criteria and process as those used for biological parents’ issues.

What are some of the obstacles fathers have faced in child custody or support disputes?

Many people feel that fathers who end up in family court are at a disadvantage, and generally end up getting the short end of the stick in terms of the legal outcome. While judges are compelled by the law to make decisions of custody and access based on the best interest of the child, it is clear how traditional attitudes towards gender roles and child rearing may influence judges to feel that children are best off living with their mothers.

Of course, in today’s world, we recognize that many fathers do take on the role of primary caregiver, or share childcare equally with their spouse. These fathers should be able to continue that level of involvement in their children’s lives after separation, unless there are valid reasons that this would not be in the children’s best interest.

Courts have expressed that the default custody arrangement should be equal parenting by way of shared custody (barring exigent circumstances). This would mean that the child would spend a roughly equal amount of time with each parent, and both parents would make decisions about the child’s life. In fact, the courts have explicitly stated that the “new common sense belief” is that children are best served by involvement and time spent with both parents, to the extent possible. Shared or even sole custody of children by their fathers is and should be a valid resolution option to child custody disputes when the facts of the case support it.

Some have even hypothesized that the establishment of equal parenting as the default arrangement will reduce adversarial legal battles, which will in turn reduce false allegations of abuse by mothers, and vengeful withholding of support by fathers.

In a similar vein, many collaborative law advocates argue that the adversarial process is simply not well-suited to resolve family law matters, especially those affecting something as crucial as a child’s wellbeing. Litigating family law issues in court can escalate existing tensions and introduce new points of conflict into an already emotionally charged process. The more progress toward resolution that can be made by way of collaborative methods, the less suffering will be inflicted upon the parties, and any children involved.

How to find help

Do you need legal advice? Get help from divorce lawyers who are trained to help you navigate through the whirlwind of paperwork and emotions that come with deciding how to proceed. Our lawyers can give you independent legal advice on separation agreements before you sign them, and explain how they will affect you.

Tailor Law Professional Corporation offers a free thirty-minute consultation during which you can speak to a lawyer about your situation. Our family law lawyers are happy to sit down with you and discuss your legal issue. We encourage you to meet with one of us, and we’ll see how we can help. We can talk through your situation, outline your options, and figure out your next steps and the best way to move forward. Give us a call at 905-366-0202 or book online.

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