Custody and access are decided by a simple formula: the best interest of the child (s. 16(8) of the Divorce Act and s. 20 of the Children’s Law Reform Act (CLRA)). This is determined by reference to the condition, means, needs and other circumstances of the child. Because this is the only standard, each case is decided on its merits.
Where the parents of a child are separated and the child lives with one of parent, either by consent (separation agreement), implied consent, or acquiescence, the right of the non-custodial parent to exercise entitlement to custody and the incidents of custody, but not entitlement to access, are suspended until a separation agreement says otherwise (s. 20(4) of the CLRA). The access parent, however, retains a right to visit with the child and to have information regarding the health, education, and welfare of the child (s. 20(5) CLRA). For example, the access parent is entitled to have discussions about religion with the child, but a court will take into account arrangements pending trial and stability and continuity (Young v Young).
After separation, it is quite typical for one parent to have de facto custody of the child/children. However, a parent also has the option of getting an interim custody order.
An interim order is a temporary order of the court pending a hearing, trial, a final order, or while waiting an act by one of the parties. s. 16 of the Divorce Act states:
16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Similarly, s. 21 and 72 of the CLRA, which applies to children of non-married parents, states that:
21. (1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
72. In a proceeding under this Part, the court may make such interim order as the court considers appropriate. R.S.O. 1990, c. C.12, s. 72.
Interim custody orders may become very significant because the parent who has the child/children in their care has a very strong argument for continuing the status quo. The legislation also reflects this preference for stability and continuity. The court’s view is that children generally do not like or benefit from change, and it is, therefore, the court’s duty to preserve stability. Factors that a court must consider in determining the best interest of the child include:
According to Marshall v Marshall, the test applied by the courts on an interim order is: what temporary living arrangements are the least disruptive, most supportive, and most protective of the child?
The status quo should be maintained as closely as possible; this means that an interim order may favour the existing situation or the parent who has de facto custody immediately following separation. The court will consider: 1) who the child is currently residing/who the child has resided with in the immediate past and considerations, if any, for changing residences; 2) the short-term needs of the child; 3) whether the current residence is suitable taking into account the child’s needs; and 4) whether the child is in danger of physical, emotional, or psychological harm if the child were to be left temporarily in the care of the current custodian and in the present home.
If there is no reason to change the existing situation, the custodial parent should remain so until trial.
Although interim orders can be determinative in certain instances, the court will not favour a custodial parent who, without valid reason, limits a child’s contact with the non-custodial parent. S. 16(10) of the Divorce Act, known as the “friendly parent rule,” states that a “court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”
Where, on the other hand, a parent acquiesces (leaves their child in the custody of the other parents and does nothing to actively seek custody) for some period of time, but then seeks to recover custody later on, a court will generally favour the interim order and keep the child with the current custodial parent.
A parent who is not awarded interim custody, but who wishes to have physical custody in the future should attempt to maintain contact with the child, exercising their access rights whenever possible.