About Child Custody & Access in Ontario
Once parties separate or divorce a number of issues must be resolved if there are any children of the relationship. If there are children of the relationship then decisions must be made in respect to their custody and care. This applies regardless as to whether the parties were married or were common law partners. As separated or divorced parents there are two possible scenarios that may play out upon attempting to settle issues that pertain to the children. Most often one parent will be given custody of the children and the other access. The main difference between the two is that the custodial parent will have the power to make important decisions that pertain to the children's education, religion, and health. The parent with access will not have authority to make such decisions but will have access to any information pertaining to same. However, it is important to note that the custodial parent must consult the access parent in regards to such decisions that are to be made.
As mentioned above, when a parent becomes the custodial parent they have authority to make final decisions pertaining to the children's education, religion, and health. This is referred to as sole custody. Sole custody typically refers to one parent having the authority to make important decisions pertaining to the children’s lives. When sole custody is ordered the non custodial parent will have access to the children and will generally have to abide by an access schedule to spend time with the children. Another option is joint custody which refers to split decision making authority between both parents. In such cases parents typically consult with one another before agreeing on the final decision. There is even the possibility that the parent with which the children reside has final decision making authority in a joint custody regime. Essentially, decision making power switches back and forth between each parent depending on whether the child resides with him or her or not. However, when the parties relationship is contentious or disputatious the court will most likely not award a joint custody regime given that agreement between the parties is not likely. In such cases the court may order a parallel parenting regime to dispel any contention or may resort back to sole custody and access.
Another option that the court may order is split custody. Split custody occurs when there is more than one child of the relationship. The way that this works is that one child resides with one parent and the other child resides with the other parent. This way both parents each have one child or more in their custody. The parent with which the child resides will have de facto authority to make decisions that pertain to that child. Interim custody on the other hand provides interim relief in respect to child custody and access while waiting for a final decision to be made by the court. Interim custody is not final and can be changed upon final determination of the issue. This form of custody is common when the parties are awaiting trial and require an interim order until something final and concrete can be decided upon.
When it comes to making an interim or final decision that pertains to both child custody and access the court resorts to a common test stipulated in the relevant legislation and caselaw that looks at what is in the best interests of the children. Although the test is a good starting point it is quite general and leaves a great deal of room for judicial intervention and discretion. There are a number of factors that the court takes into consideration including the love, affection, and emotional ties between the children and their parents, the views and preferences of the children, the length of time the children have lived in a stable home environment, the ability and willingness of each person applying for custody to provide guidance, education, necessities, and special needs for the children, whether the parent applying for custody has any plans for the education and upbringing of the children, the permanence and stability of the family unit in which the child will live, and the relationship between the children and the person applying for custody. It is therefore important to understand that given the flexibility of the judge to exert his or her discretion child custody and access disputes do not always produce the results that the parties were hoping for if a judge is left to make the final decision. It is for this reason that we focus on parenting plans rather than the litigation process. By implementing parenting plans we work with our clients and structure a custody and access regime that is based upon the wishes and desires of our client. We focus on allowing our client to pick and choose what works for him or her and negotiate their proposal with their former spouses respective counsel. This way both parties have a say in what the parenting schedules should resemble.