NOTICE TO READER
The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Veena Pohani.
How do the Courts decide who gets custody?
The Courts look at a number of factors in awarding custody to one parent over another.
Generally they will look at the Best Interests of the child relying on criteria found in s.24 of the Children’s Law Reform Act.
They will consider the wishes of the child if the child has his/her own lawyer, taking into context the views and preferences of the child into the overall parenting plan.
A parent that has had de facto custody of a child for an extended period of time since the date of separation will be presumed to be the custodian of the child. The length of time that the child has been with that parent who has made day to day to decisions for the child and provided care are determining factors in who the courts would award custody in the context of the best interests of the child. The courts will look at a variety of factors examining a matrix of factors such as grandparents relations, sibling relations, age, views and preferences of the child in addition to the love, affection, and bond that a parent and child have towards each other.
What each parent should know is that each parent has the right to apply for custody in the jurisdiction where the child resides. The Court will make a decision on custody taking into account a range of circumstances and each parent’s parenting plan.
What each parent should know is that each parent has the right to apply for custody in the jurisdiction where the child resides. If a parent applies in a jurisdiction that is not the habitual residence of a child, then jurisdiction under s.22 of the Children’s Law Reform Act will become the operative test before deciding if the court will seize jurisdiction.
The Children’s Law Reform Act and the Divorce Act each state that each parent has the right to apply for custody.
What is joint custody?Provided there is no custody order, each parent has joint custody by operation of law.In other words, each parent has the right to apply for custody as mentioned above.Joint custody requires the parents to make joint decisions together on the major issues of a child’s life including the health, education, religion and general welfare of a child. In order for joint custody to be awarded, there is a presumption that both parents can get along and have a degree of working communication to be able to make decisions together. There are tools that the courts are increasingly relying on to assist the parents to work together. The family wizard email program is gaining increasing popularity as an email program which allows both parents to email each other and facilitate in the breakdown of communication. Dates and times of when emails are opened are recorded. This helps one parent know if the other parent has received the email, has read it, and is deliberately not replying. Social media such as facebook, twitter, skype, facetime, are apps that are obviously helping parents stay connected with their children without having to communicate with the other parent.
Joint custody can also be customized so that certain issues are carved out specifically to either parent. This is known as parallel parenting. For example, one parent can manage and make all the decisions regarding a child’s education while the other parent may make all the decisions regarding a child’s extra curricular activities.
Joint custody can also lead to conflict and that is why the Courts can be hesitant to order it.
It is recommended you come in for a consultation to discuss whether your options for joint custody. You can apply to have joint custody, or you can move to vary or cancel it. One of our lawyers would be happy to discuss your options with you