Custody & 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, this area of law has changed. Custody orders are now known as “parenting orders”, and access orders are now known as “contract orders.”

The only thing to consider 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. Routinely, the best arrangement for children is one that minimally disrupts the existing environment of the child.

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.

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.

If you have children and are in the midst of a separation, please contact NuriLaw Professional Corporation and allow one of our lawyers to help you in your dispute.