Child Access and Custody: Divorce Act
During your divorce proceedings or once you have been granted a valid divorce you may make an application for an order for custody under s. 16(1) of the Divorce Act to either the Superior Court of Justice or the unified Family Court if either or both you and your former spouse/partner live in Ontario or accept the jurisdiction of the court. See: s. 4(1)(a)-(b).
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.
This section also allows third parties, such as grandparents, step-parents, and other relatives of your child, to bring applications but you should note that under s. 16(3) they must be granted leave of the court. Generally, it is harder for other family members (who are not biological or adoptive parents) to gain custody of a child.
(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.
Types of Custody Orders
Under sole custody, one parent has sole custody over the child (AKA the custodial parent) and the other parent enjoys the right to access. The custodial parent has the main responsibility for making any important decisions regarding the child’s well-being or upbringing. However, custodial parents are still required to consult with access parents prior to making any final “important” decisions related to the child. Also, time spent with the child may be split evenly between parents regardless of whether or not a sole custody order has been made. Remember that custody refers only to the unilateral ability to make decisions for your child.
Under joint custody both parents have, at all times, joint legal responsibility for the child’s upbringing even though they live apart. Unlike sole custody the parents share all decision-making responsibilities and rights. This type of order, before it is enforced, must be consented to because it requires that parents interact with one another and cooperate when making decisions for their child’s well-being. So, if the parents do not get along or have a “rocky” relationship the court will be hesitant to order joint custody unless one parent is intentionally creating conflict. If the court is convinced that the parent is causing the conflict specifically to avoid an order for joint custody then it may choose to impose it anyways. See s. 16(4):
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Temporary or “interim custody”
Either or both parents may apply for an interim order for custody if they cannot agree on the living arrangements for the child while they await a decision from the court regarding their claims. Usually, the parent that gets interim custody will also get sole custody over the child. This is because courts consider stability to be incredibly important for a child and so they will not want to change an order, especially one that has been in place for a long period of time. See s. 16(2):
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
Refers to the amount of time the child spends with each parent and is relevant to child support only since it does not affect the custodial parent’s rights and responsibilities with respect to decision-making. If a parent has sole custody of the child (i.e. the absolute right to make decisions regarding the child’s upbringing) an access parent may still have shared custody if the child spends at least 40% of the time with him or her (may include weekends, overnight visits and parts of vacations). See s. 9 of the Federal Child Support GuidelinesSOR/97-195 which gives the court the discretion to reduce the amount of child support payable once the 40% threshold requirement is met.
Situations where a father has greater then 60% of the time with one or more children and a mother has greater then 60% of the time with the remaining children. Unfortunately when split custody is ordered the children are divided from one another and so courts may be hesitant to order it. S.8 of the Federal Child Support GuidelinesSOR/97-195 provides a “formula” for determining child support in situations of split custody. Basically, the amount ordered is the difference between the amounts that each parent or spouse would otherwise have had to pay.
This alternative consists of a written agreement (either formal or informal) between parents outlining how they plan on effectively co-parenting the child. The terms of the agreement may be negotiated either by the parents themselves or through their lawyers. A parenting plan is not court ordered and not ideal in situations where the parents do not get along or cannot cooperate. A plan may include such things as: the role and responsibilities of each parent, how decisions will be made, how conflicts will be resolved and much more.
Access is found under s. 16(5) of the Act and will be awarded to the non-custodial parent to ensure that the pre-existing relationship between the parent and child continues.
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Therefore, access parents can ask questions about their child’s well-being and they have a right to receive such information but they cannot make any important decisions for their child.
As with custody orders, you may bring an application under s. 16(1) and recall that under s. 16(3) third-parties can, as well, if they are granted leave of the court. Sometimes, access will be granted if the third party is able to demonstrate that he or she has a close relationship with the child and that ending the relationship will have a negative impact on him or her.
Types of Access
This form of access is open and flexible and usually ordered where parents are able to cooperate and agree on matters relating to the child. The court in the access order, or the parents in a separation agreement, simply state that the parent is to have “reasonable access” which then allows the two parents to informally work out a schedule that is most convenient for them. Access may consist of at home visits, telephone calls, etc.
A benefit with this type of access is that it may be easily changed whenever there is a change in circumstances. However, there are also disadvantages which become apparent when one parent decides to unilaterally deny the other his or her right to access. This, in turn, forces the access parent to bring the matter before court so that the access agreement may be enforced. This is not the most cost-effective method of resolution and perhaps a more efficient method would be to ignore the concept of reasonable access and instead delineate in the agreement a set schedule outlining visitation rights with a supplementary provision containing the following statement: “…and such other times as agreed to by the parties.”
When access is “fixed” it means that terms are imposed on the visits by either agreement or court order. The frequency, length and sometimes exact time of visits are set and if necessary the location will also be determined.
When a judge is concerned with how an access parent might behave while he or she is with the child then an order for supervised access might be made. If an access parent has substance-abuse problems, there is a history of abuse or he or she has tried to abduct the child then it will be necessary that someone else (a relative, friend or a private worker) be present when the access parent and child 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. These centres provide a location in which visits and exchanges may take place under the supervision of trained staff and volunteers. 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. Also, supervised access may be set for a fixed term after which unsupervised access will begin.
In extreme cases access may be denied by the court. An example when this would typically occur is where there has been serious child abuse and the abusing parent who is requesting access refuses to seek treatment.
It is important that you are aware that custodial parents do not have the authority to control or limit the access visits and rights enjoyed by the access parent, only the court does. Also, under s. 16(7) a custodial parent may be required (if ordered by the court) to give thirty days notice to an access parent if he or she wants to move with the child. The notice given must contain the address of the new residence as well as the date on which the move will take place.
If you cannot agree on custody and/or access arrangements then you may have to go to court. If that is the case then the main consideration and determining factor is the “best interests of the child.” According to s. 16(8) the court needs to consider the condition, means, needs and circumstances of the child.
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child
This is done by reviewing the evidence given by both the parents and their lawyers but in some cases the judge may want to go out and seek other independent information about the child, his or her family and home life and his or her wishes. In that case the court may appoint a lawyer to represent the child from the Office of the Children’s Lawyer.
The Office of the Children’s Lawyer in the Ministry of the Attorney-General provides legal services to children under the age of 18 with respect to their personal and property rights and represents them in court. Usually, judges will consider the intake criteria before requesting the involvement of the Office of the Children’s Lawyer.
Once a request has been made the Office of the Children’s Lawyer has three weeks to review the request and notify the parents and the court as to whether or not the office will take the case. The Office of the Children’s Lawyer does not have to accept every case unless it is an issue involving child protection.
Children are rarely asked to appear in court because the experience may be emotionally and psychologically traumatic for them which is why the Children’s Lawyer presents their views and preferences for them to the judge. Note that these are not determinative and the final decision-making authority is still left with the judge.
If there are mental health concerns, or if a judge needs more evidence in order to make a decision, then he or she can order an assessment where a clinical investigator, social worker, psychologist or psychiatrist speaks to both the child and his or her parents so to observe how they interact with one another. Once all the interviews have been conducted, and the professional has a detailed account of the child’s home and family situation, then a report is written and submitted with recommendations for the court stating the custody and access arrangements that could most benefit the child.
Since every case is so fact specific it is difficult to define “best interests of the child”, however relevant case law suggests that preserving the status quo and keeping the child with the primary caregiver will be two (of the many) factors considered when determining the best interests of the child. There is also a lengthy and detailed list of factors in s. 24 of the Children’s Law Reform Act. Although this Act is not binding on proceedings brought under the Divorce Act the factors listed are extremely useful and may be considered by judges when determining what the best interests of the child are.
S. 16(9) states that past conduct is not a factor to consider when determining the best interests of the child unless it is relevant to a person’s ability to parent (i.e. it may be considered if the parent has a history of being abusive or violent).
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Lastly, ensuring maximum contact between each parent and the child is considered to be in his or her best interests as well as a primary objective of custody and access orders. See s. 16(10):
(10) In making an order under this section, the 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.
A judge may make an order for a definite or indefinite period of time and he or she may also impose terms, conditions or restrictions on the order if necessary. See: s. 16(6):
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Going to court is extremely costly and so if you and your former spouse/partner are having trouble agreeing on custody and/or access then you should consider these other cost-effective alternatives to court as well :
- You may choose to use a mediator who is a professional trained to help you talk about the various problems that need resolving and ultimately arrive at a solution that you can both accept and which can then be put into a written agreement and signed by you.
- Another possibility is arbitration which is a process similar to court but less formal and, unlike mediation, the decisions reached are legally binding/have legal effect. Arbitrators are required to take into account the best interests of the child when making any custody orders and it is necessary that prior to agreeing to arbitration both parents must get independent advice from a lawyer.
- A third alternative is Med/Arb whereby the parents of the child and a neutral third-party, i.e. a mediator, initially attempt to reach a voluntary agreement themselves through mediation. Then, and only if they are unsuccessful, the same parties move on to arbitration at which point the mediator becomes the arbitrator. Also, the parents may decide to terminate mediation whenever, however, the ultimate power to decide rests with the mediator/arbitrator.
- You should also be aware that s. 9(2) imposes a duty on every barrister, solicitor, lawyer or advocate to discuss with his or her client the benefits of negotiating the matters as well as the availability of mediation.
If a custody or access order has already been granted by a court under this Act then according to s. 17(1)(b) you may be able to vary, rescind or suspend it. The relevant factors are listed in s. 17(5) and again the best interests of the child is the most important factor which must be considered in light of any changes that may have occurred in the conditions, means, needs or circumstances of the child since the making of the last order. With regards to an order for access, s. 17(5.1) states that a former spouse’s terminal illness or critical condition shall be considered a change in circumstances of the child of the marriage and the order should be varied accordingly. Lastly and if possible, effect must always be given to the principle of maximum contact under s. 17(9).
According to s. 20(2) any order made under this Act has legal effect throughout Canada and is binding on all other jurisdictions.