If you are divorcing or separating, some of the most important decisions that must be made will be those relating to parental duties and responsibilities. Whether it is contentious or amicable, this area of divorce and separation potentially will have the most emotional impact to family members involved.
Custody vs. Access
Custody means the rights of a parent to make major decisions in a child’s life. Access refers to the amount of time a non-custodial parent can see the child, and be informed about the child’s health, education and welfare. Under section 16 of the Divorce Act, custody orders are now known as “parenting orders”, and access orders are now known as “contact orders.”
Best interests of the child
The primary consideration when drafting parenting arrangements or contract arrangements is the “best interests of the child”. Under section 16(3) of the Divorce Act and section 24 of Ontario’s Children’s Law Reform Act, the law provides factors that elaborate on the best interests of the child.
These factors include:
- emotional ties between the child and members of the child’s immediate family;
- views and preferences of the child;
- each parent’s plan of care for the child;
- the child’s age, development and need for stability;
- the ability of each parent to provide care to the child;
- history of each parent’s past conduct or family violence.
Often, the best arrangement for children is one that minimally disrupts the existing environment of the child.
Stability of Parent
A parent undergoing significant changes in their life may expose themselves to reduced custody. Stability, consistency and adherence to the child’s routine are powerful factors in the child custody equation.
Parenting conflicts are often the most hostile and toxic. Because much of the evidence surrounding parenting conflicts is hearsay and conflicting, courts often resort to reliance on third parties to provide details into the children’s lives from teachers, to doctors, to service providers and counsellors. If a parent’s contact is supervised, courts can also look at reports from supervised access centres. Often the most useful third-party source is the Office of Children’s Lawyer (“OCL”). Under section 112 of the Courts of Justice Act, a court can request the involvement of the OCL to provide either a lawyer to act as counsel for the children, or a clinician that can provide a detailed investigative report.
The Impact of Custody & Access Decisions
It is important to have counsel when you have children and are experiencing a separation. This is because several issues can be impacted because of your children:
- your ability to make decisions in the child’s life;
- your ability to see your child; your ability to relocate;
- you ability to expose your children to your religious faith;
- your ability to travel with your children and
- your ability to pay/receive child support.