Area of Law: Children and the Law
Answer # 974
Who decides child custody issues?Region: Ontario Answer # 974
What is child custody?
Child custody legally means having care and control of children. If you are separating and have children, custody and visitation rights will probably be among the most important concerns. However, other important issues that may be decided include decisions regarding the child’s education, religion, and health care issues.
Usually the children live all the time, or most of the time, with the parent who has custody. A parent who does not have custody will usually have rights to visit with the children at set times, and rights to ask about the children. This is usually called access.
Types of child custody
Joint custody. Sometimes only one parent will have custody and sometimes parents will have what is called joint custody. Both parents with joint custody legally have care and control of the children, and share in the important decisions about how the children are raised. Joint custody can mean that the children live part of the time with each parent, or that the children live with just one parent. Because joint custody requires a lot of co-operation by both parents, there may be hesitancy on the part of the court in making an order if there is significant friction between the parents.
Shared custody. When children live with each parent at least 40% of the time, this is referred to as shared custody. Depending on the amount of time the children spend with each parent, special provisions may apply to the calculation of child support.
Sole custody. If one parent has sole custody, it means the child lives permanently with that parent. The other parent may have access rights. It also means that the parent with sole custody can make all of the important decisions about the child. This is the case even if the other parent disagrees.
Split custody. In recent years, concepts have developed such as split custody, a situation where one or more child of the marriage remains with each parent. Split custody is a variant of joint custody which usually requires the consent of both parents. Courts do not ordinarily order split custody without agreement, as it is in the best interests of children to remain together.
Who decides child custody?
1. Agreements between spouses
In most circumstances, the courts will not interfere with an agreement made by parents about custody and access. Whenever possible parents should try to reach an agreement they can both accept, and put it in writing, such as in a separation agreement. This is by far the least disruptive and least expensive route to ensure a smooth custodial transition for children. If parents or guardians cannot come to an agreement, they must go to court, or hire a lawyer or mediator to help resolve the issues. Asking the courts to resolve custody disputes is usually expensive, unpredictable and emotionally draining.
2. The court
In making its decision, the court will consider the federal Divorce Act, the Ontario Family Law Act and the Children’s Law Reform Act, results of court-ordered assessments, and the decisions in prior court cases. Further, pursuant to the Children’s Law Reform Act, the child must also be habitually resident in Ontario for an Ontario court to make custody or access orders.
Primarily, courts tend to look at what is in the best interests of the child, when determining who gets custody and access. In most cases, the parent who has custody of the children during the separation is more likely to get permanent custody of the children after the divorce. The court rarely disrupts the children’s home environment if they have settled into a steady and stable routine with one parent.
In Canada, most family law matters, such as child custody and access, support, equalization payments, and division of property may be decided using arbitration. Arbitration cannot be used to change family status such as to annul a marriage or to obtain a final decree of divorce.
Arbitration is a method of resolving disputes, where an arbitrator, instead of a judge, makes the final decision. Arbitration is often a good alternative to going to court because it is a less expensive process and the matter can be resolved much faster. For arbitration to be binding and enforceable, the parties must agree to the arbitration, the arbitration must be conducted pursuant to federal and provincial laws, the arbitrator must be a family law arbitrator, and the arbitration award must be in writing. In family law arbitration, where family laws and arbitration laws are in conflict, provincial family law acts are considered to be more important.
Also, both parties are required to write and sign an arbitration agreement before the arbitration begins. Arbitration agreements outline the conditions of the arbitration, and usually include:
- who will arbitrate,
- where and when the arbitration will take place,
- who pays for the arbitrator,
- the issues that will be arbitrated, and
- that the spouses waive their rights to go to court.
It is important to outline all the issues that the arbitration will decide. Issues that were not included in the arbitration agreement, but were raised in the arbitration, will be disregarded. Final arbitration awards are treated as ‘domestic contracts’ by the courts, and the parties can ask for permission to appeal the decision. If the court agrees to an appeal, the court can uphold the arbitration award, or make a different decision.
Factors considered by judges and arbitrators include:
• Spouses can apply for custody. The federal Divorce Act states that, upon application by either or both spouses, a court may make an order regarding custody of, or access to children of the marriage. Only spouses are allowed to make applications for custody or access, unless the court gives leave or special permission to someone else. This means that grandparents, brothers, sisters, aunts, uncles, friends of the family, and other individuals cannot normally make an application for custody or access under the Divorce Act.
• Not biological parent. Under the Family Law Act of Ontario, a child is defined as a person whom a parent has demonstrated a settled intention to treat as a child of his or her family. Therefore, as long as a spouse can demonstrate this intention, that spouse can make an application for child custody under the Divorce Act, even though the spouse is not the child’s biological parent.
• Past conduct of a person is not to be taken into consideration when making a custody or access order, unless the conduct is relevant to the ability of the person to act as a parent to the child. Conduct which is relevant to this ability includes violent actions by a spouse toward the other spouse, or toward the child.
• In cases of same-sex marriage, the Divorce Act has been amended to include same-sex partners in the definition of spouse, allowing them to seek custody of a child. Similarly, the Ontario Court of Appeal has ruled that sexual orientation of a parent is not a factor which can prevent a parent from getting custody of a child.
• Friendly parent rule. In making an order for custody or access, the court is to follow the friendly parent rule and grant custody to the parent who is most likely to allow the other parent access to the child.
• Age of child. At one time, the age of the child was important in determining the child’s best interests. However, recent court decisions have ruled that a father is equally able to take care of young children, and they should not automatically be placed with their mothers.
• Marital offence. Commission of a marital offence, such as adultery, is not sufficient to deny custody to a parent.
• Blood ties. According to the Children’s Law Reform Act, blood ties are one factor to be considered in determining what is in the best interests of a child, but this factor is also not given priority. The Supreme Court of Canada has ruled that the best interests of the child are still more important than blood ties in making custody decisions.
In addition, the Children’s Law Reform Act lists several other factors to be taken into account when making the decision. These include:
- emotional ties between the people claiming custody or access and between other people in the household,
- preferences of the child (if they can be learned),
- stability of the home environment,
- ability of the person applying for custody to provide the child with guidance, education, and necessaries of life,
- ability to provide for any special needs of the child, and
- plans for the upbringing of the child.
As part of the court process of deciding what is in a child’s best interests, a judge often orders an assessment by a professional, such as a psychologist. The psychologist will usually meet with the children and parents several times to conduct tests and make observations. The psychologist will then make a recommendation to the judge as to which parent should get custody. The court usually takes these recommendations seriously, so it is very important to actively participate in the assessment if one is ordered.
Making decisions about custody of children can be very difficult and quite complex. For more information about child custody issues, refer to the Ministry of the Attorney General.
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For legal advice and assistance, you should consult lawyer.
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