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Child Custody, Child Access and Guardianship
For many, upon hearing the word custody, the infamous custody battle played out in the 1980 Oscar best picture winner Kramer vs. Kramer comes to mind. Fortunately, the majority of couples with children, whose relationship has broken down, are generally able, with the guidance of legislation and the assistance of counsel, to come to an arrangement respecting custody that meets the best interests of the children involved and simultaneously accommodates the lifestyles of the two newly generated families. Thus, although custody claims do feature initially in applications to the courts, most of these reach settlement before trial. The paragraphs below outline legal aspects of custody that are designed to foster resolution while addressing the overarching concern of the children’s welfare.
As noted above, the “best interests of the child” is, at least upon a judicial determination, Divorce Act, the section of the legislation dealing with custody orders, specifically requires a court to take “only the best interests of the child” into consideration1. The parameters of the “best interest of the child” are given greater form by reference to s. 24 of the Children’s Law Reform Act, where more detailed factors are set out2. Included among these factors are the love, affection and emotional ties between the child and the person claiming custody as well as other family members who reside with the child and other persons involved with the child’s upbringing; the child’s views and preferences; the length of time the child has lived in a stable home environment; and the ability and willingness of the person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child. The actual weight to be given to any one of these factors is not stated in the legislation; however, judgments of the courts indicate that the status quo has emerged as a predominant consideration. Thus, parents who have throughout the couple’s relationship acted as the primary caregivers to the children are commonly awarded custody of the children upon the relationship’s dissolution. Significantly, the past conduct of a person is a factor for the court’s consideration only insofar as it is relevant to a person’s ability to parent or the past conduct has been violent or abusive.
There is a great deal of confusion that surrounds the term custody3. Broadly spoken, custody refers to a parent’s control over and parental responsibility for the care, upbringing and education of the child. Thus, where a parent is granted sole custody of a child, it generally signifies that the other parent is excluded from participating in the ultimate decision-making for the child. In cases of joint custody then, the parents share decision-making for the children. Because there is no final arbiter between the parents who have joint custody, in the event of a conflict, the parents may resort to third parties such as parenting coordinators for resolution. Importantly, the legal notion of custody is not confined to the actual physical custody of a child. Thus, even though a child may reside primarily with her mother, the father may be equally entitled to share in the determination of questions pertaining to the care, upbringing and education of the child. It should be remembered that parents typically come to their own resolution on the issue of custody. Thus, for example, parents may determine that one parent is particularly suited to make decisions respecting a child’s medical treatment, perhaps based on that parent’s occupation, despite that parent not having primary care and control. The parents are free to fashion a custodial arrangement that reflects this.
In addition to the terms sole and joint custody, the terms shared and split custody are also often used. These terms come into play in the discussion of child support. Shared custody refers to arrangements where a parent has physical custody of a child for not less than 40 percent of the time over the course of a year. Split custody refers to situations involving more than one child, where each of the parents has custody of a sibling. For more information on this topic, please see the article entitled Child Support.
An offshoot of the issue of custody, and perhaps a more contentious aspect of the issue, is access. In accordance with the CLRA, a parent’s right to exercise access to his or her child is not suspended by the separation of the parents unlike the parent’s right to custody of his or her child, which may cease upon separation of the parents4. The rights that a parent enjoys pursuant to access are the right to visit with and be visited by the child and the right to make inquiries about and to be given information about the health, education and welfare of the child. A parent who frustrates the other parent’s right to visit with his or her child or to obtain information about the child will be in violation of this legislatively entrenched right. A typical access schedule involves the child spending alternate weekends and one or two nights per week with the parent not having primary care and control. There may also be significant vacation time access during the Christmas school break, March break and summer holiday.
Custody orders are not carved in stone. The legislation does provide for changes to custody orders in recognition of variations that may arise5. A parent who wishes to vary a custody order must demonstrate to the court that there has been a change in the condition, means needs or other circumstances of the child. The threshold for a court to vary a previous order is high - there must exist a change which materially affects the child and the change must have been unforeseen at the time the order was initially granted6. A carefully crafted separation agreement or parenting plan should thus take into consideration typical life changes, such as education, religion, etc., in a child’s development.
1Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), as am, s. 16. (Back)
2Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am., s.24 [hereinafter the CLRA]; Part III of the CLRA deals with Custody, Access and Guardianship.(Back)
3The confusion stems in part from the lack of guidance provided by the legislation. Section 2 of the Divorce Act defines custody as including “care, upbringing and any other incident of custody.” The CLRA does not contain a definition of the term custody. (Back)
4See CLRA, ss.20 (4). (Back)
5See Divorce Act, s.17 (Back)
6The leading case on this topic is Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. decided by the Supreme Court of Canada. The case involved a custodial mother who wished to move with her daughter to Australia against the father’s wishes; the father who sought to vary the custodial arrangement argued that the move constituted a material change. (Back)