Child Custody and Access FAQ
Custody is best understood as the right to make fundamental decisions concerning your child. For example, custodial parents can make important decisions regarding religious practices, education, and health. Under Ontario’s Children’s Law Reform Act, the default regime is that both parents are equally entitled to seek custody (s. 21).
A parent will be awarded custody if it is deemed to be in the best interests of the child. See Best Interests of the Child for more information on how courts determine the child’s best interests.
Paramount to any decisions regarding custody and access is stability. Courts are interested in maintaining as much stability as possible for children during the separation and divorce process. If one parent acted as the primary caregiver throughout the former relationship, that parent will be more likely to be awarded primary residence (i.e., the children would have their primary residence with that parent), but the other parent may still be awarded joint custody. (See Types of Parenting Arrangements for more information on joint custody.) In some cases, a judge may ask for an assessment by a social worker, psychologist or psychiatrist to help inform his or her decision.
In general, past conduct on the part of either parent does not influence the judicial outcome. However, acts that diminish a person’s ability to parent (acts of violence or abuse against the other party or the children; substance abuse) will be factored into custodial and access decisions.
Behaviours that are favourable to an application for custody/access:
- Maintaining contact with your children to show your commitment;
- Working out a parenting plan with your former spouse/partner where possible;
- Trying to maintain the status quo as much as possible;
- Limiting the children’s exposure to conflict between parents.
Behaviours that are detrimental to an application for custody/access:
- Using the children to relay messages to the other parent;
- Refusing the other parent’s access rights (unless the wellbeing of you or your child is a concern);
- Falsifying or embellishing any claims in an Application for custody or access.
The ideal solution to any custody or access dispute is a negotiated agreement between you and your former spouse or partner, usually in the form of a separation agreement. If you and your former spouse are unable to reach a consensus through negotiation, collaboration or mediation, the court will determine the most appropriate outcome for your children. While many post-separation families seek the neutrality of a judicial order, it should be noted that a judge is a stranger to your living circumstances and negotiation is encouraged to give parties control over the decision-making process.
For information on how to fill out an Application requesting custody, see Child Custody and Access Forms.
While a child cannot formally decide with whom to live, a judge may consider a child’s wishes in determining the best interests for that child. A child may express his or her wishes to a judge directly (during an interview) or through a representative, such as the Office of the Children’s Lawyer.
In general, the older and more mature a child is, the more weight his or her opinion is given in making an order for custody and access. Judges will not often give weight to the opinion of young children. See the article Best Interests of the Child for more detailed information on what a court will consider when determining what is in a child’s best interests, in the absence of the child’s expressed views.
A child’s right to express his or her wishes is protected under the United Nations Convention on the Rights of the Child, which was ratified by Canada in 1991. The Convention states that children who are capable of forming their own views have the legal right to express those views in all matters by which they are affected, including judicial proceedings. In addition, the Convention provides that children have the legal right to have their views given due weight in accordance with their age and maturity.
Custody and access arrangements can be made by way of a separation agreement or a parenting agreement. If parties are unable to come to an agreement by negotiation, there are other ways to resolve custody and access disputes. Parties may negotiate with the assistance of qualified family law lawyers either by correspondence or in four way joint meetings. Parties may also choose to participate in mediation or arbitration as alternatives to court.
For more information on the Feldstein Family Law Group’s alternative approaches to dispute resolution, visit: www.separation.ca and www.collaborative-family-law-group.ca. Our Services details the types of unbundled services we provide to clients seeking alternative forms of dispute resolution.
Shared custody refers to a financial relationship between former spouses or partners where each party has access to the children at least 40% of the time. In a shared custody arrangement a payor may pay less child support to the former spouse or partner.
Section 9 of the Child Support Guildelines lists the three factors used to decide support amounts in shared custody circumstances:
Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
- the amounts set out in the applicable tables for each of the parents or spouses;
- the increased costs of shared custody arrangements; and
- the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
These factors were interpreted by the Supreme Court in Contino v. Leonelli-Contino where the majority of the court held that all of these factors should be given equal weight, and that any decision under section 9 must emphasize “flexibility and fairness to ensure that the economic reality and particular circumstances of each family are properly accounted for.”
It is important for parties arguing under section 9 of the Child Support Guidelines to present detailed evidence under factors (2) and (3), above. For example, parties will want to present a household budget and lead evidence as to their standard of living and financial obligations. The parties will also want to present a detailed child care budget demonstrating the costs of the shared custody arrangement.
See the Child Support information, and specifically Calculating Child Support, for more information.