Child Custody and Access Rights in Ontario Divorce

Types of Custody in Ontario

Navigating child custody and access rights during a divorce in Ontario can be a complex and emotionally charged process. Here is a detailed overview of the types of custody in Ontario and what parents need to know about each.

Sole Custody

Definition and Implications Sole custody occurs when one parent is granted the responsibility for making the major decisions about the child’s life, including education, health care, and religion. The child primarily resides with the custodial parent, and the non-custodial parent typically has access rights, which means they may spend time with the child according to a schedule.

When and Why It Might Be Granted Sole custody might be granted if one parent is deemed significantly more capable of meeting the child’s needs or if there is a history of abuse, neglect, or inability to cooperate on child-related issues by the other parent.

Joint Custody

Understanding Joint Custody Arrangements Joint custody involves both parents sharing the decision-making responsibilities for the child, regardless of where the child primarily resides. This arrangement requires a high level of cooperation and communication between the parents to make decisions jointly in the best interest of the child.

Communication and Decision-Making Responsibilities Effective communication and a commitment to cooperative parenting are key to the success of joint custody. Parents must be able to discuss and agree on major aspects of the child’s life. Courts may recommend mediation or counseling to help parents achieve a workable joint custody arrangement.

Shared Custody

Clarification of Shared Custody Shared custody refers to an arrangement where the child spends at least 40% of the time with each parent. This type of custody is focused more on the physical living arrangements of the child than on the decision-making process, which may be jointly shared or solely held by one parent.

How It Differs from Joint Custody The main difference between shared and joint custody lies in the physical custody of the child. While joint custody centers on shared decision-making, shared custody emphasizes the distribution of the child’s time between the parents. Financial child support calculations may also differ under a shared custody arrangement due to the substantial amount of time the child spends with each parent.

Split Custody

The Concept of Split Custody Between Siblings Split custody occurs when siblings are divided between the parents, with each parent having sole or primary custody of one or more children. This arrangement is relatively rare and is typically pursued only under specific circumstances that serve the best interests of each child.

Rare Cases and Considerations Split custody might be considered if there is a significant age difference between siblings, if specific needs or preferences of the children warrant such an arrangement, or if the children express a strong preference for living with one parent over the other.

Access Rights

Different Types of Access Arrangements

Supervised vs. Unsupervised Access 

• Supervised Access: This type of access is when a non-custodial parent can visit with the child only in the presence of another adult. Supervised access may be ordered when there are concerns about the safety or well-being of the child during visits, such as cases involving a history of abuse, addiction, or mental health issues. Supervision can occur at a designated access center or be facilitated by a trusted family member or friend.
• Unsupervised Access: Most access arrangements are unsupervised, meaning the non-custodial parent can spend time alone with the child without any restrictions.

Virtual Access through Technology Virtual access involves using technology, such as video calls, texting, or social media, to facilitate communication between the non-custodial parent and the child. This type of access can supplement in-person visits, especially in situations where geographical distance makes regular visits challenging, or as part of an interim arrangement while transitioning to unsupervised access.

Factors Affecting Access Decisions

The primary consideration in determining access arrangements is the child’s best interest. Several factors can influence access decisions, including:

• The Child’s Physical, Emotional, and Psychological Needs : This includes considering the child’s age, development, and any special needs they may have.
• The Parent-Child Relationship: The nature of the relationship between the child and the non-custodial parent, including the history of their interactions and the parent’s past involvement in the child’s life.
• Safety and Welfare Concerns: Any history of abuse, neglect, or issues that might affect the child’s safety and well-being can impact access decisions.
• Parental Cooperation: The ability of the parents to communicate and cooperate on matters affecting the child can influence the type of access arrangement. High conflict or inability to work together might necessitate supervised access or specific guidelines to minimize the child’s exposure to conflict.
• Child’s Preferences: Depending on the age and maturity of the child, their preferences may be considered in determining access arrangements.

Determining Custody and Access

The “Best Interests of the Child” Standard

How Courts Determine What Is in the Child’s Best Interests Courts employ a comprehensive approach to determine what will best serve the child’s needs and welfare.

Factors Considered by the Court Several specific factors contribute to the court’s assessment of the child’s best interests, including but not limited to:

• The emotional bonds between the child and each parent
• Each parent’s ability to provide the child with guidance, education, and the necessities of life
• The stability of each parent’s home environment
• The child’s physical, mental, and emotional needs, and each parent’s ability to meet these needs
• Any history of family violence, abuse, or neglect
• The child’s cultural, religious, and linguistic upbringing and heritage
• Any special needs of the child and how each parent meets those needs

Parental Rights vs. Child Welfare Considerations

While parents have rights concerning their children, including the right to make decisions affecting the child’s life and the right to spend time with the child, these rights are considered secondary to the child’s welfare.

The Role of Child’s Preferences in Custody Decisions

The child’s preferences may play a role in custody and access decisions, especially as the child grows older and is better able to express their wishes. However, the weight given to these preferences can vary. Factors influencing this include the child’s age, maturity, and the extent to which their preference is based on sound reasoning. While a younger child’s wishes might be considered, greater weight is often placed on the preferences of older children and teenagers. However, even in these cases, the child’s preferences are only one of many factors considered, with the overriding concern always being the child’s overall best interests.

Modifying Custody and Access Orders

Circumstances under Which Modifications Can Be Requested

Modifications to custody and access orders can be sought under various circumstances, including but not limited to:

• Significant Changes in Circumstances: This can include changes in the living situation, health, or employment status of either parent that affects their ability to care for the child.
• Relocation: If one parent plans to move a significant distance away, it may necessitate changes to custody and access arrangements to maintain the child’s relationship with both parents.
• Concerns for the Child’s Well-being: If there are concerns about the child’s safety, health, or emotional well-being under the current custody arrangement.
• Non-Compliance with Current Orders: If one parent consistently fails to comply with the terms of the custody or access order.
• The Child’s Needs and Preferences: As the child ages, their needs, preferences, and best interests may change, requiring adjustments to custody or access arrangements.

The Process for Requesting a Change in Custody or Access

• Attempt Resolution Outside of Court: Parents are encouraged to first attempt to resolve any disputes or changes through mediation or negotiation, to reach an agreement that can then be formalized by the court.
• File a Motion to Change: If an agreement cannot be reached, the parent seeking the modification must file a motion to change the existing custody or access order with the court.
• Provide Evidence: The parent must provide evidence supporting their request for a change.
• Court Consideration: The court will consider the motion, taking into account the evidence presented, the best interests of the child, and any objections from the other parent.

Legal Considerations for Modifications

• Best Interests of the Child: The overriding legal consideration in any modification request is the child’s best interests.
• Material Change in Circumstances: The parent requesting the modification must demonstrate a material change in circumstances since the last order was made.
• Evidence of Compliance and Cooperation: The court may also consider each parent’s history of complying with current orders and their willingness to cooperate and facilitate the child’s relationship with the other parent.
• Impact on the Child: Consideration is given to the potential impact of the proposed change on the child, including their emotional, physical, and psychological well-being.

Custody and Access Disputes

Common Causes of Disputes and How to Address Them

Changes in Life Circumstances: Significant changes in a parent’s life, such as relocation, new employment, or changes in living arrangements, can lead to disputes.

Non-Compliance with Court Orders: Disputes often arise when one parent feels the other is not adhering to the agreed-upon custody or access schedule. Documenting instances of non-compliance and attempting to resolve misunderstandings through dialogue is a first step.

Concerns about the Child’s Welfare: If one parent has concerns about the child’s safety or well-being under the care of the other parent, it can lead to disputes. In such cases, it’s crucial to gather evidence and seek a resolution that ensures the child’s safety, possibly involving legal intervention if the child is in danger.

Communication Breakdowns: Poor communication between parents can exacerbate conflicts. Using clear, written communication and mediation services can help improve understanding and facilitate agreements.

The Role of Mediation and Alternative Dispute Resolution

Mediation: Mediation involves a neutral third party helping parents reach an agreement on custody and access issues. It is often quicker, less stressful, and less costly than litigation. Mediators can facilitate discussions, helping parents focus on the best interests of the child and find common ground.

Collaborative Family Law: This is a legal process where both parents, with their lawyers, agree to resolve disputes outside of court through negotiation and cooperation.

Arbitration: In arbitration, a neutral arbitrator makes decisions on disputed issues after hearing arguments and evidence from both sides.

Legal Recourse and Litigation

When mediation or alternative dispute resolution methods fail, or if there are urgent concerns about the child’s welfare, legal recourse may be necessary.

Motion to Change: Parents can file a motion to change with the court to seek modifications to existing custody or access orders. This requires demonstrating a material change in circumstances that affects the child’s best interests.

Emergency Orders: In situations where a child’s safety is at immediate risk, parents can apply for emergency orders to protect the child.

Litigation: As a last resort, parents can resolve disputes through litigation, where a judge will make a binding decision based on the evidence presented. Litigation can be lengthy, expensive, and emotionally taxing, but sometimes it’s necessary to protect the child’s welfare.