Child Custody in Ontario

admin • Jun 24, 2019

Child Custody in Ontario

The breakdown of a relationship can be very difficult for the adults involved, but if that relationship has produced kids, it can be even more difficult for the children of that relationship to adjust to the significant life changes they are facing. When the law talks about child custody, it not only refers to the physical care and control of the children, but it also addresses things like health care, education, religion, etc… Typically, when a parent has custody, it means that the children are primarily living with that parent. The other parent will have what is called access, which can mean pre-determined visitation times and the right to inquire about the children from the other parent, as well as from educators, and healthcare providers.

The 4 general types of child custody:

Joint Custody:

This type of custody requires a great deal of cooperation between the parents, so the courts are reluctant to consider this if there is evidence of a lot of tension between the separating parties. Joint custody means that both parents legally have care and control of the children, and as a result, they share in all the important decisions affecting the children. This can be applied whether the kids primarily live with one parent, or reside part of the time with each.

Shared Custody:

This type of custody applies when the children live at least 40% of the time with each parent. The courts can apply special provisions to calculating child support depending on the amount of time the children live with each parent.

Sole Custody:

This type of custody means that one parent has complete control of the children and are solely responsible for their care, while the other parent might have access rights. In this scenario, the children permanently reside with one parent, and that parent has the right to make all the decisions pertaining to raising the children – regardless of whether the other parent agrees.

Split Custody:

This type of custody is the most recently developed of the four, and the courts have started considering this for cases where each parent has one or more of the children residing with them. The law typically considers it in the best interest of the children to keep them together in the same home. However, when both parents consent and where there is evidence to support good cooperation between the parents, the courts will consider this variation to joint custody.

The 4 general types of access:

Reasonable Access:

Also called ‘liberal and generous access’, this type of access is not pre-determined by a formal agreement. This is better for parents who are able to cooperate, because it requires that they communicate to make plans for the kids informally, and can change the plans around to accommodate variations to their schedules as they arise.

Fixed Access:

Also called ‘specified access’, this type of access is typically formally determined in an agreement, and will state the time and date determined for each parent, and can specifically address pick up, drop off, locations, holidays, vacations, birthday, religious events, etc.

Supervised Access:

In this type of access, one parent may need to be monitored during the time they spend with the children. This can be as a result of a drinking or drug problem, past child abuse, threats against the children, etc.. In this situation, the person supervising might be a relative, a friend, a social worker, an employee of a supervised access centre or a Children’s Aid worker. In this case, the time, date and location of the meeting are typically pre-determined to allow the supervisor to be present.

No Access:

In rare situations where the court cannot protect the safety of a child with a parent, access is denied completely.

How is custody decided?

Sometimes, parents already have an idea of how best to determine child custody, and can write the agreement down between them. Usually, it will form part of the separation agreement and courts will typically respect such agreements drafted between the parties. Some people benefit from having legal representation at this stage, because it helps keep communications between the parties documented through their lawyers, and if necessary, can go to mediation to iron out the finer points and come to an agreement both parties can accept. This route is less expensive and less confrontational than going to court, and can also yield results faster.

Alternatively, if the parents cannot come to an agreement, they can present their case to a judge. The judge will consider the Family Law Act, the Children’s Law Reform Act, and the Divorce

Act, as well as the results of any court ordered assessments and previous court decisions in making their determination. In order to appear before an Ontario court to present your case, your children must primarily live in Ontario. When a judge hears a case about child custody, their primary concern is to consider what is in the best interest of the child, and their typical approach is to minimize the disruption to the routine and environment to which the child has become accustomed. It is common for the parent who has custody of the children during separation to get custody after the divorce, especially if the children appear to have settled into a routine. The goal is to maintain as much stability as possible for the children affected by the dissolution of their family.

What is an Assessment and is it important?

To determine what is in the best interest of a child, the court can often order an assessment. This is typically done by a professional, such as a psychologist, who will likely meet with the all the children and the parents multiple times to conduct their research and make the necessary observations. Once that is done, the psychologist will make a recommendation to the judge about which parent should get custody to satisfy the best interest of the children. The court heavily relies on these assessments, so it is highly recommended that parents participate thoroughly and take them very seriously.

Having legal representation means that you do not have to worry about communicating with your former spouse or their lawyer. It means that you do not have to worry about meeting court deadlines, having the proper documents, in the proper format, delivered to a particular location, within a prescribed amount of time. It can reduce the anger and the confrontation to which your children can be exposed, and it allows you to focus on making the transition to a new chapter in your life as smooth as possible. At Noohi Law, we understand that this is a stressful time and the changes in life and circumstance can be overwhelming. You can trust us to handle your legal needs, so that you can give your attention to the needs of your children.

***Disclaimer: This article is written for informational purposes only and should not be relied upon as legal advice***

Child Custody in Ontario