The children’s issues are central to any parents facing separation and/or divorce.  Where will the children live? How will decisions be made regarding their upbringing?  Parents are often plagued with insecurity.  The following summary is designed to provide a brief explanation of the key terms and aspects of custody law in Ontario.

There are two main features of custody decision-making:

1. how major child-related decisions are made; and
2. the time the children spend with each parent.

A person granted “custody” is normally responsible for the child on a daily basis and is the person who makes the daily and major decisions for the child.  A person with “access” has the right to visit with the child and to be kept informed about the child’s health, education, religion and general welfare. Although the terms custody and access are still used by the courts and in the legislation, they have largely fallen out of favour.  Most often, lawyers will speak of parenting, for example: shared parenting, parallel parenting and such.

Joint custody or shared parenting normally implies that each parent has an equal say in major child-related decisions.  The statutes limit these “major decisions” to the children’s non-emergency healthcare, their religion and education.  The other routine or day to day decisions are normally made by the parent with whom the child is residing at the time, such as emergency medical care, bedtime, and the like.     

Although joint custody is common, that arrangement does not necessarily imply equal sharing of time.  Generally, one parent still has day-to-day care and control of the children and the other parent has generous contact and the right to be involved in major decisions.  Equal time-sharing arrangements, such as “week about” arrangements are becoming more popular, particularly with older children, but they are not yet the norm.  Under the joint custody umbrella, the timeshare regimes do vary and an access parent may, in some cases, have more time with the child than a joint custodial parent in another.

Although their terms are, essentially, the same, two different statutes regulate custody and access matters in Ontario.  Section 16 of the Divorce Act governs custody for married spouses and section 24 of the Children’s Law Reform Act governs parents who did not marry.

In order for a court to have jurisdiction in custody and access matters, the test is one of habitual residence i.e. where the child normally resides. In the alternative, if the child is not in the jurisdiction at the time, the test is one of where “substantial evidence” regarding the child would be found.

The “best interest of the child” is paramount in any custody determination.  Parental “rights” should not play a role in who is awarded custody.  The decision must be child-focused.  The legislation and the case law have created criteria which must be considered when deciding best interest, but it is not an exhaustive list since the determination must be case and child specific.  The court must consider the needs and circumstances of the child, including:

1. each parent’s ability to provide, and plan of proposed care, for the child;
2. the relationship (love, affection and emotional ties) each parent has with the child;
3. the child’s wishes, if s/he is mature enough to provide them;
4. if there is more than one child, the preference to keep them together;
5. the status quo (length of time the child has lived in a stable home environment) in order to minimize disruption if possible;
6. the primary caregiver of the child during the marriage;
7. the time available to each parent to spend with the children (working hours, out of town trips);
8. one parent’s support for or interference with the other parent’s relationship with the child; and
9. any special needs of the child.

The parenting arrangements can either be agreed upon in a Separation Agreement or some other form of settlement document or they can be litigated.  Regardless of how the resolution comes about, in order to be complete, it should address:

1. Day to day decision-making for the child;
2. Related decisions that may include choice and placement for daycare or school, counselling, intervention for a child with special needs, extra-curricular activities, religion and medical care;
3. Residential arrangements for the child, including sharing of school, statutory and religious holidays;
4. Notice of change to schedule;
5. Passports and travelling;
6. Daily communication and contact information;
7. Access to information such as school and medical records;
8. Name change issues;
9. Change of residence issues;
10. Death of one parent (although these are always subject to best interest of child at the time); and
11. Dispute resolution of future parenting issues.

Custody arrangements are never final or exhaustive.  Children, and their needs, are ever changing, dynamic and variable.  In many cases, there will be an issue the parties have not dealt with, a new wrinkle, a change to be considered, so some kind of review provision must always be built into a settlement.  This will provide the parents with an opportunity to come back and consider the plan, how it is working for the kids and to address any new circumstance that has arisen.  Moreover, since the court always retains the jurisdiction to oversee custody, such an order or agreement can always be re-opened in the child’s best interests.