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CUSTODY AND ACCESS 101
Child custody and access matters in Ontario are dealt with under two pieces of legislation: the Ontario Children’s Law Reform Act (“CLRA”) and the federal Divorce Act, depending on the situation. The Divorce Act applies when spouses have commenced divorce proceedings. The CLRA applies in all other custody and access disputes in Ontario (for instance, where spouses have separated without commencing divorce proceedings, where the parents of a child were not married, etc.).
Despite some differences between the CRLA and the Divorce Act, the results under each will be substantially similar as the controlling question in all cases related to a custody or access issue is always the same: what is in the best interests of the child? The factors considered by courts in answering this question is discussed further below under the heading: “What Does a Court Consider in Making Custody and/or Access Orders?”
What is the Difference between “Custody” and “Access”?*
“Custody” of a child means the authority to make decisions concerning that child, including decisions related to education, non-emergency medical decisions, religious decisions, and decisions about extracurricular activities. If one parent is awarded sole custody, for example, that parent will exercise all powers as the legal guardian of that child. The non-custodial parent, who may have access rights, will not have the right to participate or be involved in decisions affecting the child’s welfare and development. A non-custodial parent, may, in times of emergency or when the custodial parent is not available, exercise some limited decision-making responsibilities. Joint custody means that both parents have the right to make major decisions concerning the child’s health, education, and upbringing. Some ways to implement joint custody are discussed below under the heading “What are Some Different Kinds of Custody and Access Arrangements?”
“Access” to a child means the right to visit with or be visited by the child, and for the parent with access to make inquiries and be given information on the health, education and welfare of the child.
Who Can Apply for Custody and/or Access?
It is not only parents who can apply for custody or access to a child. Any other persons, such as a grandparent or even someone not related to the child, may apply for a court for an order respecting custody or access. However, under the Divorce Act, a person wishing to apply for custody or access who is not a parent must obtain leave of the court to apply. Courts will only allow such third party applications to be brought by persons who have been previously involved in the child’s life.
What does a Court Consider in Making Custody and/or Access Orders?
The CLRA provides that both parents have an equal entitlement to custody. Thus in proceedings under the CLRA, a court starts from the premise that both parents are entitled to custody. However, the courts will diverge from this if it is in the best interests of the child to do so. Courts are not concerned with the interests or rights of the adults involved. The Divorce Act does not contain a similar presumption to equal entitlement.
Coming to a decision about the best interests of the child involves a consideration of all the child’s needs and circumstances. The CLRA, in section 24(2), provides a list of factors for a court to consider in making a determination on custody and/or access:
- love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child;
- the child’s views and preferences, and if they can be reasonably ascertained;
- the length of time the child has lived in a stable home environment;
- the ability and willingness of each person applying for custody of or access to the child to provide the child with guidance and education, the necessities of life and any special needs of the child;
- the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and
- any familial relationship between the child and each person who is a party to the application for custody or access.**
Courts will consider “all the child’s needs and circumstances” including things that are not listed above. One example of a factor that is commonly considered by the courts which is not on the list above is known as the “maximum contact principle”. This principle is enshrined in section 16(10) of the Divorce Act which provides that “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.”
Courts only consider the past conduct of an applicant for custody or access if the court is satisfied that the conduct is relevant to the person’s ability to act as a parent, or if that conduct relates to violence or abuse against his or her spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.***
What are Some Different Kinds of Custody and Access Arrangements?
Courts have wide discretion to structure custody and access orders for definite or indefinite periods of time, and subject to any terms, conditions, or restrictions that the court sees fit. What happens in each case is highly fact-specific.
Courts may grant custody or access orders on an interim or temporary basis, they may grant joint custody orders (which are common), sole custody orders, supervision orders, orders to vary or terminate pre-existing custody or access orders, or other kinds of related orders such as order restricting mobility (for instance, to prevent a parent from moving a child to another province). Courts may also grant third party custody orders (though these are rare) or third party access orders, which are more common (for instance, access orders for grandparents).
Because the best interests of the child are the primary concern of the courts – not parental rights – ongoing parental conflict or an inability between the parents to constructively share custody may impact a court’s decision. However, one parent creating conflict and claiming sole custody on the basis of their inability to work with the other parent will not lead to an order of sole custody. In assessing whether joint custody is appropriate, the courts will consider whether there is a sufficient degree of cooperation and communication between the parties that will enable effective parenting and meet the needs of the child.
However, there are options that allow for joint custody even in situations of high levels of conflict between the custodial parents. This could include the assistance of a parenting coordinator to resolve disputes and/or a parallel parenting order. Parallel parenting orders may include things such as: each parent assuming responsibility for the child while the child is with that parent; a parent having no say over the actions of the other parent while the child is in the care of the other parent; contact between the parents being minimized; and information about the child being shared in writing. Another option is to carve out specific areas of exclusive decision-making for each parent (for instance, one parent makes decisions about education, the other makes decisions about health). Again, in determining whether a parallel parenting order is appropriate, the courts will only consider whether such an order would be in the best interests of the child.
Where a joint custody order of any kind is not appropriate, courts may use an access order to ensure that the parent and child continue to have a relationship.
Parenting issues can be complex. If you require assistance with any parenting issues, please contact a member of the McKenzie Lake family law team.
* Note that as of July 1, 2020, the Divorce Act will use new terminology, replacing “custody” with “decision-making responsibility” and “parenting order” and access with “parenting time” and “contact order”.
** Note that as of July 1, 2020, the Divorce Act will expressly list very similar factors in section 16(3).
*** Note that as of July 1, 2020, the Divorce Act will contain similar provisions to this in section 16(4)-(5).