Child Custody and Child Access – FAQs

Q: Who Will Get Custody of My Children?

Usually, a biological or adoptive parent will get custody of the children. However, the relevant provisions in both the Divorce Act and the Children’s Law Reform Act allow third parties to make applications.

Third parties are usually: grandparents, step-parents, aunts, uncles or other relatives and family friends. It is harder for non-biological and non-adoptive parents to get custody but if they can show that it would be in the best interests of the child to award custody to them it may be granted.

Generally, when it comes to granting custody to a parent the courts will usually prefer to leave the child with the primary caregiver. Although the courts are not gender-biased a trend seems to emerge whereby mothers are mostly granted custody primary residence and fathers are given the right to access.

This trend may be explained by the fact that in most families, mothers seem to be the primary caregivers and so it may be likely that the courts will be reluctant to disrupt that pattern within a family especially if the children are most used to the consistent presence of their mothers in their lives.

Of course, every case is fact-specific and just because it seems as though custody primary residence is usually awarded to mothers who are the primary caregivers this does not mean that the courts will deny custody to a father who falls within that category.

Q: How Do I Get Custody of My Children?

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.

Q: What Is the Difference Between Temporary, Sole, Joint and Shared Custody?

The differences between the 4 types of custody orders are as follows:

1. Temporary Custody Order: When custody proceedings are going on a decision has to be made as to where the child will live in the interim period (or temporarily) until the final order has been granted. Therefore, if the parties cannot agree on the living arrangements themselves the judge will make an order for temporary custody. One issue associated with temporary custody is that it usually gives the parent (to whom it is awarded) a slight advantage over the other because judges when making a final order, won’t want to disrupt the status quo or interfere unnecessarily with the living arrangement that the child has become used to.
2. Sole Custody Order: Sole custody gives one parent the exclusive decision-making authority in his or her child’s life when it comes to the child’s upbringing or well-being. Therefore, the custodial parent will have the ability to make all decisions relating to education and schooling, health and religion (among other things). However, if you are granted sole custody of your child you still need to consult with your former spouse/partner before making any final decisions.
3. Joint Custody Order: It may also be the case that, either through agreement or court order, you and your former spouse/partner are given joint custody of the child. Essentially, this means that both of you share, at all times, the legal rights and responsibilities associated with custody even though you live apart. You are both entitled to make important “final” decisions about your child’s upbringing and well-being. Recall though that you must still consult with one another before doing so. This form of custody also requires a lot of cooperation between you and your former spouse/partner.
4. Shared Custody Order: Shared custody does not affect the custodial arrangement agreed to by the parties or ordered by the court. Instead, it relates to child support and so if you “share” custody with your former spouse/partner it will not affect the custodial parent’s power to make final decisions. Rather, shared custody may allow the access parent to pay less child support if he or she can show that the child spends at least 40% of the time with him or her.

Q: Do I Have to Go to Court?

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, click here. Our Services details the types of unbundled services we provide to clients seeking alternative forms of dispute resolution.

Q: If We Share Custody, Will I Have to Pay Support?

It depends. If your child is still a dependent and your former spouse/partner has primary physical residence of the child then you will have to pay child support.

However, if the time is shared, i.e. if your child spends at least 40% of his or her time with you then the amount of child support that you need to pay may be lowered.

Since the child is spending almost equal amounts of time with both you and your former spouse/partner then the expenses that the both of you may have, that are associated with taking care of your child, will be more or less the same and as a result you should not have to pay an excessive amount of support which could then result in a windfall gain to your former spouse/partner and undue hardship to yourself.

The relevant section to consider is s. 9 of the Child Support Guidelines (both federal and provincial) which has been interpreted by the case of Contino v. Leonelli-Contino [2005] 3 S.C.R. 217.

This case established a 2-step approach to determining child support in situations of shared custody. The first step is to determine whether the 40% threshold has been met, and if it has, then the amount of support is decided by considering subsections (a), (b) and (c):

• Subsection (a) states that the starting point in figuring out the appropriate amount is a simple “set-off” whereby the amount payable is the difference between the Table amounts for each parent (as though each was seeking child support from the other). Since this amount has no presumptive value the court can change it and add to it based on the evidence presented under subsections (b) and (c).
• Subsection (b) refers to the increased costs that are associated with shared custody. In order to determine whether there are in fact any increased costs that need to be incorporated into the amount payable, the court will examine the budgets and actual expenditures of each parent.
• Lastly, subsection (c) gives the court the power to consider the condition, means, needs and other circumstances of each parent and child and vary the amount payable where it is warranted. You should be aware of the fact that the courts seem to be most concerned with the standard of living of the child involved and will probably try to award an amount that will allow the parents to maintain that standard of living.

Q: If My Former Spouse/Partner Hasn’t Made Support Payments, Can I Refuse Access to the Children?

No you cannot. Custodial parents have no right to deny or limit the rights of an access parent.

Usually what happens is when a court orders support that order is automatically filed with Family Responsibility Office (FRO) who then contacts the parties and begins collecting support payments from the payor to then administer to the recipient.

If there is no order and instead only a separation agreement then the parties can file the agreement with the court who then files it with the FRO.

The parties may also choose to exclude the FRO from their support arrangements however their withdrawal must be express and consented to.

Therefore, if your former spouse/partner begins defaulting on his or her payments the FRO has the authority under the Family Responsibility and Support Arrears Enforcement Act, 1996 to:

• garnish wages
• seize bank accounts
• suspend passports and other federal licences
• seize income tax returns and GST rebates
• garnish 50% of Employment Insurance, CPP, OAS, and other federal periodic payments, and
• suspend a driver’s licence.

If the FRO is unsuccessful in enforcing the support payments and your former spouse/partner is still not paying according to the order or agreement then the last alternative available is to find him or her in contempt of the orders pursuant to s. 49(1) of the Family Law Ac, which may result in either a fine or a term of imprisonment.

Q: Can My Child Decide Who They Want to Live With?

Not really. A child cannot decide where or with whom he or she would like to live since it is the job of the judge to determine what the best interests of the child are and who should be awarded custody of the child.

However, the child’s wishes can be presented to the judge for his or her consideration by either the child (himself or herself) or by the child’s representative.

You should also note that if the child is older then more importance will be placed on his or her wishes.

Q: Do Grandparents Have a Right to See Their Grandchildren? Or Can Other Family Members Also Be Granted Access, Such as Aunts, Uncles, Step Brothers or Sisters, Etc.?

Of course. Other family members, (i.e. individuals who are not biological or adoptive parents) may be granted access to your child if they can show to the court that they have an existing close relationship with the child and that ending the relationship will have a negative impact on him or her.

However, you should be aware of the “parental autonomy approach” discussed in Chapman v. Chapman 201 D.L.R. (4th) (Ont. C.A.). This case acknowledged that relationships with extended family members are important and beneficial to children and if they are imperiled arbitrarily, due to the reorganization of a family after separation or death, then the courts may intervene.

However, if a family is intact, and a parental decision is made which limits access, and it is not proven to be detrimental or contrary to the best interests of the child then the courts will show deference to the parents’ authority because they alone have the legal duty and are responsible for the welfare of their children. Therefore, if a family is intact it may be harder for a third party to be granted access if it is contrary to the parents’ decision (according to the parental autonomy approach).

However, if the parents are separated/divorced or if one is deceased then it may be easier and the courts may be more willing to grant access to a third party to ensure the continuation of the relationship shared between the child and the third party if it is in the best interests of the child to do so.

Q: If We Have to Go to Court to Decide on Custody, What Does the Judge Consider in Making the Decision?

The judge will consider solely “the best interests of the child” as opposed to the best interests of the parents or other individuals.

Therefore, when deciding which parent should be granted custody and which should be given access the judge will consider (among other things):

• the emotional ties between the child and each parent, as well as other family members who live with him or her
• the child’s wishes
• the child’s present living arrangements and the length of time that the child has been living there
• the ability of each parent to take care of the child and address his or her emotional, physical, and other needs
• the plans each parent has for the child
• the degree of stability that each parent would bring to the child’s life
• which of the two parents is the primary caregiver
• which of the two parents would be most likely to ensure contact between the child and the other parent. Whichever parent is the most willing will be the one that is granted custody of the child.
• Lastly, past behaviour is usually not considered but if the court is presented with evidence showing that one of the parents has been violent or abusive towards the other, or towards the child, then the judge will accept it and include it in his considerations.

Q: What Is an Ex-parte Order?

An order is said to be ex parte when it is granted by a judge at the request of and for the benefit of one party only, without notice to or contestation by the other party.

Therefore, only one party appears before the judge and gives his or her version of the facts even though a judge is normally required to hear from all of the parties. Typically, ex parte orders are granted for temporary/interim custody or in extreme cases where an order needs to be made right away for the safety and protection of the child, i.e. if there is a risk of abduction or possibility of abuse.

An ex-parte order must be returned to court within 14 days of the date in which the Judge made the Order. For an ex parte order to be granted the party bringing the motion needs to provide the court with strong evidence that is comprehensive. This means that it is incredibly important that all of the facts be given to the court because if some are omitted and the court becomes aware of it then the consequences of that will be to dismiss the order.

Imagine, for example, a mother applying for an ex parte order for custody of her children on the basis that her husband beats the children. However, the wife is also guilty of abusing the children yet she fails to mention it. If the court discovers the omission then they will dismiss the motion.

Q: Can a Judge Order Access or Supervised Access for a Non-custodial Parent?

Yes, by law it is mandatory that every order made by a judge gives effect to the principle of maximum contact so that every child of the marriage has as much contact with each parent as is necessary to advance his or her best interests.

Therefore, after a judge grants custody to one parent the other will be automatically entitled to access and if there is a history of violence or abuse, or fear that the child will be abducted by the access parent then the court may impose an order for supervised access.

Q: If I Have to Go to Court to Decide Custody/Access, Will My Children Have to Appear in Court?

Probably not because judges are aware of the fact that testifying in court can be a very scary experience for a child, especially if that child is forced to testify against a parent or during a bitter custody dispute.

If the judge needs the testimony of the child or evidence of the child’s views and preferences in order to make a determination then the following options are available:

• the judge can request that the Office of the Children’s Lawyer become involved in order to represent the child in court.
• The judge can ask to speak to the child alone in his or her chambers. However, this is often very difficult to do and used only in extreme cases because judges need to ensure that they are asking questions in such a way that the child can understand what is being asked as well as the judge needs to ensure that he or she is not suggesting answers to a child by asking leading questions.
• Last, if the first two options fail then the judge may need the child to come to court and testify but this is very rarely ordered.

Q: What Is the “Best Interests of the Child”?

A:The best interests of the child is the only factor that judges have to consider when making any decision relating to custody of or access to a child of the marriage. It is both imposed and recognized by the law.

Q: What Is the Difference Between Reasonable, Fixed, and Supervised Access?

Reasonable Access

Reasonable access is the most flexible of the three types of access that a judge is able to award. In the court order or the separation agreement, it simply states that the parent is entitled to “reasonable access” after which the parents are able to informally determine a schedule themselves that is most convenient.

This form of access is usually granted in situations when the parents are able to cooperate and agree with minimal conflict. One problem with this type of custody is that the informality of the order and the fact that the schedule is not court-imposed or contained in an agreement means that a custodial parent may begin unilaterally denying access to the access parent. In that case, the only recourse that the access parent has is to bring the matter to court and attempt to vary the pre-existing order or agreement which is both time-consuming and costly.

Fixed Access

If a court order or separation agreement imposes terms on an access visit then it will fall under the category of “fixed access.” The frequency, length and sometimes exact time of visits are set and if necessary the location will also be determined.

Supervised Access

Supervised access will normally be ordered or agreed to if the access parent has a history of violence, abuse, a drug or alcohol problem or if he or she has threatened to abduct the child and as a result the court or custodial parent think it is necessary to have someone present when the child and access parent are together.

The location of the supervised access visits may vary. They can take place at the access parent’s home or even in a supervised access centre. This form of access is necessary in order to ensure contact between parents and the child as well as ensure that the pre-existing relationship is maintained or re-developed.

Q: What Is the Office of the Children’s Lawyer?

The Office of the Children’s Lawyer (OCL) is a law office in the Ministry of the Attorney General which provides legal services and representation to children under the age of 18 with respect to their property and personal rights.

Children are represented in the areas of:

• child custody and access disputes,
• child protection proceedings,
• estate matters,
• and civil litigation.

Children and/or parents cannot obtain the services of children’s lawyers on their own rather the children’s lawyer must be appointed by a judge after he or she considers the relevant intake criteria.

If the dispute relates to a matter other than child protection the OCL has the authority to refuse the case.

Q: My Former Partner/Spouse Isn’t Providing Access According to Our Court Order. What Can I Do?

The first thing you can do is apply to court to try and get the court order enforced so that he or she does provide access as previously agreed to or ordered.

If that fails then your former partner/spouse may be found in contempt of the order and fined or imprisoned.

Another possibility, which depends on how consistently your access has been denied and for how long, is for the court to vary the pre-existing order so that you are granted custody and your former partner/spouse is given access to the children.

However, you must assure the court that if that is to happen you will be willing to encourage access between the children and the other parent.

Q: I Want to Change My Custody or Access Order. What Can I Do?

You can apply to the appropriate court for a variation.

However, in order to vary an existing custody or access order you must have a good and legitimate reason. You need to show the court that there has been a material change in your circumstances, condition, needs and means that warrants a variation. In other words, your situation has greatly changed to the extent that the order needs to be varied in order to be complied with.

For example, if a custodial parent gets transferred to another province for work-related purposes then he or she may request a variation to account for this “material change”.

You also have to show the court that a variation would be in the best interests of the child.

Q: I Think My Former Spouse/Partner May Abduct My Child. What Can I Do?

You may include a provision in your separation agreement specifying that the child is not to be removed from the province unless both you and your former spouse/partner consent to it.

If there is no agreement then ask the court to make “non-removal of the child without consent” a term of the custody and access order made.

If you are still worried then you may ask the court to supervise the order to ensure that the child is not removed from the province. Or, you may make an application to the court to prevent the removal of your child from Ontario contrary to the agreement or order made, or to ensure that your child is returned to you if you are the custodial parent.

If the threat of abduction is imminent and you are sure that your former spouse/partner will abduct your child the court has the power to direct the police to locate and take your child and then deliver him or her to you. Depending on the severity of the situation, notice may not even have to be given.

Please visit our Child Abduction Law section on our website for more information.

Q: Which Parent Determines Where Their Children Will Go to School?

Where a child goes to school is a rather important decision in their young lives. The custody arrangements for a child will determine which parent makes this decision.

In sole custody arrangements, decision-making authority is in the hands of the custodial parent. While custodial parents will have the final say, they must consult with the access parent and take their preference into consideration.

In joint custody arrangements, parents share decision-making authority and have an equal voice in the decision. They must come to an agreement and decide together.

If joint parents are unable to reach an agreement, they can seek the assistance of a mediator or arbitrator to help them reach a resolution. If all else fails, a judge can make the decision for them.

Options that maintain the stability and consistency in a child’s life may be preferred depending on the situation. While a primary parent’s convenience with regards to the location of the school may be considered, the interests and preferences of parents are not determinative.

Overall, the judge’s decision will be made entirely based on the child’s best interests.

Is Child Support Taxable Income in Canada?

In Canada, child support payments are not taxed as income for the party who receives the child support, nor is it tax deductible on the party who pays the child support.