Child Custody Articles
The various forms of parenting arrangements seen in Ontario involve two different legal terms: custody and access, which are applicable to both married and non-married parents whether they cohabitated or not.
Quite often, people misunderstand the term custody. The Divorce Act defines custody quite broadly, as including “care, upbringing and any other incident of custody.” Custody is best understood as the right to make fundamental decisions concerning your child regarding religious practices, education, health, and wellbeing. Both parents are equally entitled to seek custody.
Whichever form of custody and access you and your former partner are contemplating, a parenting plan can be a useful tool for preventing conflict. (See [Types of Parenting Arrangements] for a detailed description of forms of custody and access.) A parenting plan is an agreement between post separation parents outlining the specific ways in which each parent will care for and continue to raise their children. A well prepared parenting plan contemplates both the current and future needs of the children, along with methods to resolve common areas of conflict in post separation families.
The “best interests of the child” is a principle grounded in legislation and case law, resulting in both a right of the child and obligation upon the parent. In making an order for custody or access under either the Divorce Act (federal legislation, for married parents pursuing a divorce) or the Children’s Law Reform Act (Ontario legislation applying to parents who are not married, or who are not pursuing a divorce), the court will consider only the best interests of the child. What exactly is in a child’s best interests is often a matter of individual opinion or interpretation.
In order to change an existing custody or access arrangement, you must apply to the court to “vary” (change) the previous order. To succeed with a variation application, you must be able to prove to the court that there has been a change in the “condition, means needs or other circumstances of the child” (Divorce Act, s. 16(8)).
Legally speaking, child abduction is the removal or detainment of a child contrary to an access or custody provision in a court order or agreement. Unfortunately, each year hundreds of children in Canada are abducted by a parent.
Quite often child abduction is triggered during the process of separation and divorce when parents are in dispute over matters of custody and access. There are many subjective reasons a parent may resort to child abduction; however, the law sees no justification for unilaterally forfeiting a child’s right to see a parent.
Legal and psychological experts agree that what children of divorce need is to continue healthy parent-child relationships. Contrary to this philosophy is a behaviour known as parental alienation, in which one parent undermines an intact parent-child relationship, turning the child or children against the other parent. This results in what is called parental alienation syndrome. Alienation occurs when one parent manipulates a child to reject the other parent, whether out of hatred, fear, or loyalty to the alienating parent. Unfortunately, parental alienation is a phenomenon that can arise in custody disputes.