If you fall under one the following three categories than the Children’s Law Reform Act will be used to resolve any custody disputes between you and your partner:
- Common law couples who decide to separate;
- Couples that have entered into a legally valid marriage and who decide to separate without obtaining a divorce, and;
- Couples that are neither common law nor married but who have children.
Unlike the Divorce Act, the Children’s Law Reform Act provides a very detailed, thorough and comprehensive list of factors to be considered when making any decisions. The process, however, is almost identical to that under the Divorce Actas are the types of custody and access that may be ordered.
Under this Act both parents are equally entitled to custody of the child and under s. 20(4) that right may be suspended if the parents are separated and the child resides with one of the parents with the consent (express or implied) or acquiescence of the other. The right to access is not restricted and the custodial arrangements may be varied through an agreement or court order.
Access is found under s. 20(5) of the Act and similarly to the Divorce Act it includes the right to visit the child, ask questions and receive information relevant to the child’s well-bring and upbringing.
(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.
You will need to bring an application under s. 21 of the Act to the Ontario Court of Justice, the Superior Court of Justice or the unified Family Court that may according to s. 28(1) make orders for custody and access. However, a court can also decline to exercise its jurisdiction if it believes that it would be more appropriate for an application to be heard outside of Ontario.
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.
Third parties may apply for an order granting custody or access, however unlike the Divorce Act there is no mention of whether or not they need to be granted leave of the court.
Section 22(1)-(2) provides specificities about jurisdiction and states that the child must be habitually resident in Ontario, or at least present in Ontario when the application is made, and must have a real and substantial connection with the province. Also, significant evidence relating to the best interests of the child must be available to the court. You should note that this section does not need to be complied with if you would like to make or vary an order because there is a threat of serious harm or violence towards your child.
When making an order for custody or access under this Act the most important consideration will be “the best interests of the child”. Also, subsections (2), (3) and (4) provide a long list of factors that are effective guides for judges who attempting to determine what the best interests of the child are. These factors are incredibly helpful and usually determinative. Therefore, when gathering evidence showing that it is in the best interests of the child to grant custody to you, satisfying these factors is best route to take.
(2) The court shall consider all the child’s needs and circumstances,
If evidence is brought forward showing that you have acted violently in the past it will not be held against you or considered if you can prove that your actions were done strictly in self-defence or to protect another person.
The court under s. 30(1) of this Act can order an assessment if it feels that more evidence is needed in order to make a decision about the custody of your child. A request for an assessment made by a judge does not, however, limit your ability or the ability of your child’s representative/lawyer to submit other relevant and expert evidence showing the best interests of the child.
You may also make a request to the court to appoint a mediator to mediate any matter specified in the order.
The Divorce Act makes little mention of enforcement procedures in comparison to this Act which provides a long and detailed section that allows courts to enforce orders that are not being complied with. Under s. 34(1) the court may instruct a person, a children’s aid society or other body to supervise an order of custody or access. If your child is being unlawfully withheld and as a result you are being denied your rights under the order made then you, or the police if necessary, may locate and take the child. In extreme cases and where necessary notice may not even be necessary. Lastly, s. 38(1) allows the Ontario Court of Justice to punish by fine or imprisonment any parent who is not obeying the order that was made.
If you have already been granted custody or access in a province other than Ontario the court may choose to enforce it provided it respects’ the rights of both parents and is not contrary to public policy, among other factors listed under s. 41(1). The court can also recognize it as an order of the court or supersede it if there is a material change in the circumstances of the child or if it would subject the child to harm.
The court may also vary an order made under s. 29 of the Act if there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
One last thing that is interesting to note about this Act is that it contains the Convention on Civil Aspects of International Abduction under s. 46. therefore, according to this if an access parent removes a child from his or her country of habitual residence (and effectively eliminates the other parent’s right to custody) then an order may be made for his or her immediate return if the country to which the child has been taken to has also ratified the Convention.