Custody gives a parent the right and responsibility to make major decisions for their child. The parent that has custody is referred to as the custodial parent. Major decisions can include education, religion and non-emergency health care.
There are different types of custody. Sole custody gives one parent the ability to make all major decisions for the minor child(ren). Joint custody allows both parents to make the decisions together. In joint custody arrangements the amount of time spent with each parent and the primary residence of the child can vary significantly. The parents are given the opportunity to create a schedule that works best for the family. Where parents are unable to agree, mediation and the courts will assist.
Access is the time the non-custodial parent spends with the child(ren). A non-custodial parent still has the right to be informed of the child(ren)’s health, education and welfare (Divorce Act s.16(5); Children’s Reform Act(CLRA) s.20(5)). Day to day decisions are made by the parent who is with the child at that given time.
Where the parents are married and not yet divorced, both parents are considered to have custodial decision-making rights. However, if a parent moves out of the home after separation, the parent who remains with the child gets de facto custody under s. 20(4) of the CLRA, and the other parent is entitled to access only. This why it is very important to create a separation agreement where both parents can set out how they wish to proceed. With a separation agreement both parents can maintain their custodial decision making authority and set out any other provisions they wish the other party to abide by.
Parents can incorporate a parenting plan in a separation agreement in order to minimize conflict and disruption. A parenting plan is where the parents agree on decision-making authority between them and create a schedule on when the child gets to see each parent. If a plan is agreed to it becomes a binding contract and legally enforceable.
If the parents are unable to do this voluntarily, the lawyers will hold a meeting for both parents and try to assist them in coming to an agreement. If they fail to do that, the court may create on and it will be binding on both parties.
Courts have the ability, under s. 56 of the Family Law Act, to change an agreement if they find that it is not in the best interest of the child. However, they rarely interfere if it is not necessary to do so.
Who can apply for custody or access?
Biological parents, adoptive parents, stepparents, grandparents or any other third party can apply for an order for custody or access to the child.
Non-parent applications for custody can be more difficult, especially when a child’s parent is living, able and willing to care for the child. There are special requirements for non-parents, such as a mandatory police records check that is to be completed within the previous 60 days. They must also authorize the children’s aid society in their area to provide a report that outlines the individual’s involvement in any CAS cases. Court records will also be checked for any previous family cases involving the non-parent. Finally, at the court’s request, criminal history of the non-parent may also be checked.
The Law in Ontario
In Ontario, custody and access are governed by the federal Divorce Act and the CLRA. Divorce Act applies to those who are married and getting a divorce. Under the Divorce Act, courts in Ontario can hear and determine the case if your spouse has been living in Ontario for at least one year preceding the custody proceeding (s.3(1)). If the child is connected to another province, the proceedings may be transferred on application (s.6). Elements that may connect the child to another province can include the school they attend, how much time they spend in the province and/or where their physician is location.
The CLRA applies to parents are not married or those who are not getting a divorce. In these cases, Ontario courts have jurisdiction to hear and determine the case where:
The child’s normal residence is in Ontario (s.22(1)(a)).
If the child’s normal residence is not Ontario but
the child is physically in Ontario at the start of the application
there is evidence that the best interest of the child is in Ontario
no application for custody or access is started in another province
no extra-provincial order has been recognized by an Ontario court
the child has a real and substantial connection to Ontario; and
on the balance of convenience it is appropriate to exercise jurisdiction in Ontario (s. 22(1)(b)).
It should be noted that courts have the ability to decline to allow the case in their jurisdiction if they believe that another court is more appropriate (s. 25).
Factors Courts Consider
The test for resolving custody and access issues is based on the best interests of the child. The test is set out in both the Divorce Acts (s. 16(8)) and the CLRA (s. 24). The factors considered are:
child’s physical well-being;
child’s emotional well-being and security;
the applicant’s plan for the child’s education and maintenance;
child’s financial needs;
child’s religious and ethical upbringing;
parent’s understanding of the child’s needs;
child’s wishes (this factor increases in importance with the child’s age);
benefit of keeping siblings together; and
bonding between a child and his caregivers.
The application of this test is fact driven on a case-by-case basis and focused on the child’s needs rather than the parents’ rights.
Maximum contact principle:
Under section 16(10) of the Divorce Act, there is a legal consideration called the “maximum contact principal,” which essentially states that a child should have as much contact with both parents as is in the child’s best interest. If a parent fails to ensure that they foster the need for this contact, they may be deemed to have abandoned the child and it will be consideration in custody and access determination. Although the CLRA doesn’t have the same provision, the courts will automatically apply it.
A parent’s conduct or misconduct is only taken into consideration if it affects the child or the parent’s ability to care for the child (Divorce Act s.16(9); CLRA s. 24(3)). Alcohol and drug abuse are two of the primary concerns. Violence towards the other spouse, child, or any other household member will be taken into consideration (CLRA s.24(4)). Self-defense or action taken to protect another person is not considered violence or abuse.
Supervised access is where the non-custodial parent is permitted to interact with the child only under the supervision of another adult. This can be at a specialized center where a social worker, counselor or any other designated party is assigned to be present. It can also include access to the child where the other parent is present.
Supervised access is usually enforced where the child is at risk in a parent’s care due to violence, alcohol or drug addiction or has health problems that may limit their ability to care for the child. The parent seeking the supervised access has to prove that it’s necessary.
Enforcement of Custody and Access Order
There are a number of measures in place to have custody and access orders enforced. Failing to follow a temporary or final order of the court is considered contempt, which can result in a fine or imprisonment.
Usually, there is a clause in the order that allows any police agency (Toronto Police, OPP, RCMP) to assist in removing the child from the parent who took the child and have them returned to the parent named on the order. Lawyers may also assist by contacting the opposing counsel and eliciting their assistance in having the child returned without police interference.
It is always wise to be as courteous as possible in such cases. If the other party is late in returning the child back a few minutes, it may be best to simply talk to them about the importance of timing. Police assistance should be a last resort.
Child is withheld or abducted:
The following are enforcement options when a child is withheld or abducted:
Abduction of a child under the age of 14 by a parent or guardian in contravention of a custody order is a criminal offence under ss. 282–283 of the Criminal Code. The Attorney General starts an action under s. 283 to have the child returned.
Under the Family Orders and Agreements Enforcement Assistance Act, a federal government agency assists in tracing an abducted child or abducting access parent. Either a police force or a custodial parent under a court order or an agreement may seek assistance from this unit. If the applicant is a custodial parent, court authority is required.
If a child has been abducted to a state that is signatory to the Hague Convention, the custodial parent may contact the Central Authority in this jurisdiction, which will in turn contact the Central Authority in the receiving jurisdiction to take steps for the recovery of the child.
Under the CLRA, the court has authority to make orders directing the appropriate police force to locate and apprehend a child, including search and entry orders.