An Introduction to Custody and Access
If you have a child and experience separation from the parent of the child, it is important you consider the issue of custody and access. Custody is not only important because it determines who acts as the child’s primary caregiver, it also determines who pays child support.
If you want to apply to a court to have your custody and access issues determined there are several things you must consider.
Which court? What law?
The first issue to consider is your marriage status and the right venue at which to commence your application. If you are married to the parent of the child, you can apply under the Divorce Act or Children’s Law Reform Act at the Superior Court of Justice or under the Children’s Law Reform Act at the Ontario Court of Justice. If you are not married, then you cannot apply for custody or access under the Divorce Act and are therefore likely to file your application under the Children’s Law Reform Act at the Ontario Court of Justice.
Am I entitled to apply?
Now that you know which law governs your dispute and at which court you must file your application, consider whether you are even entitled to apply for custody or access. Under the Divorce Act you can apply for custody or access of a “child of the marriage”. A child of the marriage is a child of two spouses or former spouses, who at the time of the application (a) is not a child that is married; (b) is a child that is under the age of majority and has not withdrawn from parental care; or (c) is a child that is the age of majority or over, but is still in the care and control of a parent because he/she is unable to be independent because of illness, disability or a compelling reason.
If you apply under the Children’s Law Reform Act, then the rules are more relaxed. You can apply for custody or access as a biological parent, as a step-parent, or as a grandparent of a child. You can even file for custody or access if you are a non-parent.
What does it mean to have Custody and Access?
Before you apply it is also important to know what it means to have custody and access.
Custody refers to the rights and responsibilities for the care, upbringing and education of a child. Where a parent is given sole custody, it means that the other parent is excluded from decisions relating to care, upbringing and education of the child. In a case of joint custody, both parents share decision-making for the child with respect to his/her care, upbringing and education.
Access refers to the time a non-custodial parent has a child in his or her care. Access also includes the right to make inquiries about a child and to be given information about a child’s health, education and welfare.
Best interest of the Child.
In custody and access applications, the single most important factor to resolve custody and access issues is the best interest of the child. Some parents make the mistake of thinking their entitlement to apply for custody and access amounts to a “right” to access the child or a “right” to have a child in their care. Some parents even go as far as mistakenly thinking that because they pay support, they have a “right” to see the child. This is a mistake since a parent’s interests, although sincere and pressing, are second to those of the child.
The best interests of the child are paramount in custody and access disputes irrespective of the venue. Section 24 of the Children’s Law Reform Act provides useful factors to consider when looking at best interests of a child. Court must consider all the child’s needs and circumstances, which include:
- child’s physical and emotional well-being – including closeness of bonds with each parent/caregiver and members of family;
- child’s views and preferences – which increases in importance with the child’s age;
- applicant’s plan for the child’s education and maintenance;
- child’s financial needs;
- stability of the child’s environment
- child’s religious and ethical upbringing;
- parent’s understanding of the child’s needs;
- benefit of keeping siblings together; and
- applicant’s ability to care for the child.
Courts are mindful of an applicant’s past conduct – specifically if it involves violence, not-used in self-defence, towards the child, a sibling of the child, a parent of the child, or any spouse of the applicant.
Where there are different versions of events from parents, it can also be helpful to have a custody and access assessment performed by a psychiatrist under section 30 of the Children’s Law Reform Act. It is preferable if both parties consent to such a report because courts only order such reports when “clinical issues” are involved.
If there are no clinical issues and there is no consent, parties can also move under section 112 of the Court of Justice Act to have the court request the assistance of the Office of Children’s Lawyer (OCL). The OCL can investigate and produce reports on parenting issues. The OCL cannot be ordered to do this, so its involvement really depends on the circumstances of the child.
Ultimately, custody and access is an area that becomes contentious because it determines who pays child support. Custody battles are often driven by a motive to protect or seek income. Custody and access also offers ripe means for parents to undermine one another, to play emotional and psychological warfare with the children as footsoldiers. Not surprisingly, the heaviest toll in such circumstances is suffered by the children themselves.