Child Custody Issues

*Please note that the information on this website is intended as a guide only. Each case is unique and context-specific. Legal advice should be sought in regards to your family issue. Provincial and territorial legislation on family law policy and legislation will differ from province to province. If you or anyone you know requires legal advice, an experienced family lawyer should be contacted. If you have any questions not covered on this website, send an email enquiry to info@nanda.ca and we’ll be sure to get back to you shortly.

Who has custody of the children?

Initially, both parents have custody of the children. Custody is generally not an issue until one party wants to obtain full custody from the other parent. Until the court creates an order or the parents enter into an agreement, both parents have the same rights in regards to the custody of the children. Neither party has more rights than the other, regardless of circumstance.

Who can ask for custody?

the Divorce Act and the Ontario Children’s Law Reform Act, either parent (or guardian) can maintain access to a child by means of custody. This means that grandparents, common law step parents, and friends can apply for custody, where it is appropriate.

In the event that the application to seek custody falls under the Divorce Act, the application may only be with respect to a child of the marriage in the divorce proceedings or by someone other than a spouse- this requires leave of court. It should be noted that each province/territory has its own legislation in handling child custody, and as such, the legislation in the jurisdiction of where you live needs to be considered.

What is interim custody?

Interim custody is short-term custody which is granted to a party until a final order is made. Interim custody generally occurs after the separation. The party with current access to the children allows the other party to have access to the children; this ensures that both parties have as much right to the children as one another.
Interim custody is similar to an interim support order. An interim support order is an order in which custody is granted for a longer period of time (although it may have been intended to be a shorter period of time). In this case, the court will consider the custody period the “status quo.” Thus, an interim support order may become permanent without either party intending it or realizing it. Both parties should be cautious about the length of time that the children remain in either type of custody.

What principles apply to the granting of custody?

In granting custody, the over-arching principle that applies is “the best interests of the child.” This principle applies to all provinces and territories. Such legislation can also be found in Ontario’s Children’s Law Reform Act. The courts are concerned with what the best interests of the child are, regardless of the outcome that either parent wants. The Ontario Children’s Law Reform Act and the Divorce Act state that the past conduct of the party requesting custody is not taken into consideration unless it is relevant to the ability of the party to act as a parent for the child.

Under section 17(1) of The Divorce Act:

The Court:
"shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact."

Under section 19(a) of The Ontario Children's Law Reform Act:

The purpose of the Act is:
"to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children."

What rights does the person with custody have?

Under The Children's Law Reform Act, a person entitled to the custody of a child has the rights and responsibilities of a parent and must exercise those rights and responsibilities in the best interests of the child. Due to the fact that sole custody grants parental rights, it is important that separated parents understand what the best interests of the child entail.

What is joint custody?

Joint custody is an arrangement in which both parties have the same rights that they had before they were separated. Joint custody is a good medium for both parties due to the fact that neither party has sole custody. Each party has equal rights over the children. In some cases, joint custody will be granted, but one parent will be named as having primary care and control of the children. The parties may also come to an agreement in which an order sets out that the primary residence of the children is that of one of the parties.

Generally speaking, the best interests of the child include having as much stress-free contact with each parent, as is possible. In some cases, the child will live with one parent for part of the week, and with the other parent for the rest of the week. In some cases, the child will live with one parent for one or two weeks, and live with the other parent for the other week(s). Any form of shared parenting is likely to be acceptable to the courts. In all scenarios, parents are urged to set their differences aside when it comes to the joint custody of a child.

It is always important to ensure that all parties understand what “joint custody” means within the legal definition. If you are unsure of what joint custody entitles you to, you should check with a knowledgeable family lawyer on the issue. This will ensure that all of your rights are respected.

If I have custody can I move away with the children?

It depends. Moving children to another area while on a custody grant has been a major issue in the area of family law. This issue involves what the courts call “mobility rights.” On May 2nd 1996, the Supreme Court of Canada issued a major decision on the topic and stated while the views of the parent with custody will be an important consideration, the best interests of the child will prevail. In considering these interests, the courts will consider the effect that the move will have on the child. For instance, how far the child is moving away from the other parent? Is the child moving due to a better job opportunity that one of the parents has been offered? If the move has an adverse impact on the child, the court will refuse to allow the child to be moved. For more resources on Mobility Rights, view Ontario Ministry of the Attorney General’s website: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/family_law.asp

For More Information:
To read more about Child Support GuidelinesClick Here